Commentaries on the Laws of England (1765-1769)
Sir William Blackstone
Of Title by Descent
The several gradations and stages, requisite to form a complete title to lands, tenements, and hereditaments, having been briefly stated in the preceding chapter, we are next to consider the several manners, in which this complete title (and therein principally the right of propriety) may be reciprocally lost and acquired: whereby the dominion of things real is either continued, or transferred from one man to another. And here we must first of all observe, that (as gain and loss are terms of relation, and of a reciprocal nature) by whatever method one man gains an estate, by that same method or its correlative some other man has lost it. As where the heir acquires by descent, the ancestor has first lost or abandoned the estate by his death: where the lord gains land by escheat, the estate of the tenant is first of all lost by the natural or legal extinction of all his hereditary blood: where a man gains an interest by occupancy, the former owner has previously relinquished his right of possession: where one man claims by prescription or immemorial usage, another man has either parted with his right by an ancient and now forgotten grant, or has forfeited it by the supineness or neglect of himself and his ancestors for ages: and so, in case of forfeiture, the tenant by his own misbehavior or neglect has renounced his interest in the estate; whereupon it devolves to that person who by law may take advantage of such default: and, in alienation by common assurances, the two considerations of loss and acquisition are so interwoven, and so constantly contemplated together, that we never hear of a conveyance, without at once receiving the idea as well of the grantor as the grantee.
The methods therefore of acquiring on the one hand, and of losing on the other, a title to estates in things real, are reduced by our law to two: descent, where the title is vested in a man by the single operation of law; and purchase, where the title is vested in him by his own act or agreement.1
Descent, or hereditary succession, is the title whereby a man on the death of his ancestor acquires his estate by right of representation, as his heir at law. An heir therefore is he upon whom the law casts the estate immediately on the death of the ancestor: and an estate, so descending to the heir, is in law called the inheritance.
The doctrine of descents, or law of inheritances in fee-simple, is a point of the highest importance; and is indeed the principal object of the laws of real property in England. All the rules relating to purchases, whereby the legal course of descents in broken and altered, perpetually refer to this settled law of inheritance, as a datum or first principle universally known, and upon which their subsequent limitations are to work. Thus a gift in tail, or to a man and the heirs of his body, is a limitation that cannot be perfectly understood without a previous knowledge of the law of descents in fee-simple. One may well perceive, that this in an estate confined in its descent to such heirs only of the donee, as have sprung or shall spring from his body; but who those heirs are, whether all his children both male and female, or the male only, and (among the males) whether the eldest, youngest, or other son alone, or all the sons together, shall be his heir; this is a point, that we must result back to the standing law of descents in fee-simple to be informed of.
In order therefore to treat a matter of this universal consequence the more clearly, I shall endeavor to lay aside such matters as will only tend to breed embarrassment and confusion in our inquiries, and shall confine myself entirely to this one object. I shall therefore decline considering at present who are, and who are not, capable of being heirs; reserving that for the chapter of escheats. I shall also pass over the frequent division of descents, into those by custom, statute, and common law: for descents by particular custom, as to all the sons in gavelkind, and to the youngest in borough-english, have already been often2 hinted at, and may also be incidentally touched upon again; but will not make a separate consideration by themselves, in a system so general as the present: and descents by statute, or fee-tail per formam doni [by form of the gift], in pursuance of the statute of Westminster the second, have also been already3 copiously handled; and it has been seen that the descent in tail is restrained and regulated according to the words of the original donation, and does not entirely pursue the common law doctrine of inheritance; which, and which only, it will now be our business to explain.
And, as this depends not a little on the nature of kindred, and the several degrees of consanguinity, it will be previously necessary so state, as briefly as possible, the true notion of this kindred or alliance in blood.4
Consanguinity, or kindred, is defined by the writers on these subjects to be “vinculum personarum ab eodem stipite descendentium;” the connection or relation of persons descended from the same stock or common ancestor. This consanguinity is either lineal, or collateral.
Lineal consanguinity is that which subsists between persons, of whom one is descended in a direct line from the other: as between John Stiles (the propositus in the table of consanguinity) and his father, grandfather, great-grandfather, and so upwards in the direct ascending line; or between John Stiles is related to him in the first degree, and so likewise is his son; his grandsire and grandson in the second; his great-grandsire, and great-grandson in the third. This is the only natural way of reckoning the degrees in the direct line, and therefore universally obtains, as well in the civil,5 and canon,6 as in the common law.7
The doctrine of lineal consanguinity is sufficiently plain and obvious; but it is at the first view astonishing to consider the number of lineal ancestors which every man has, within no very great number of degrees: and so many different bloods8 is a man said to contain in his veins, as he has lineal ancestors. Of these he has two in the first ascending degree, his own parents; he has four in the second, the parents of his father and the parents of his mother; he has eight in the third, the parents of his two grandfathers and two grandmothers; and, by the same rule of progression, he has an hundred and twenty eight in the seventh; a thousand and twenty four in the tenth; and at the twentieth degree, or the distance of twenty generations, every man has above a million of ancestors, as common arithmetic will demonstrate.9 This lineal consanguinity, we may observe, falls strictly within the definition of vinculum personarum ab eodem stipite descendentium [relation of persons descended from the same stock]; since lineal relations are such as descend one from the other, and both of course from the same common ancestor.
Collateral kindred answers to the same description: collateral relations agreeing with the lineal in this, that they descend from the same stock or ancestor; but differing in this, that they do not descend from each other. Collateral kinsmen as such then as lineally spring from one and the same ancestor, who is the stirps, or root, the stipes, trunk, or common stock, from whence these relations are branched out. As if John Stiles has two sons, who have each a numerous issue; both these issues are lineally descended from John Stiles as their common ancestor; and they are collateral kinsmen to each other, because they are all descended from this common ancestor, and all have a portion of his blood in their veins, which denominates them consanguineos [relations].
We must be careful to remember, that the very being of collateral consanguinity consists in this descent from one and the same common ancestor. Thus Titius and his brother are related; why? because both descend from the same grandfather: and his second cousin’s claim to consanguinity is this, that they both are derived from one and the same great-grandfather. In short, as many ancestors as a man has, so many common stocks he has, from which collateral kinsmen may be derived. And as we are taught by holy writ, that there is one couple of ancestors belonging to us all, from whom the whole race of mankind is descended, the obvious and undeniable consequence is, that all men are in some degree related to each other. For indeed, if we only supposed each couple of our ancestors to have left, one with another, two children; and each of those children on an average to have left two more; (and, without such a supposition, the human species must be daily diminishing) we shall find that all of us have now subsisting near two hundred and seventy millions of kindred in the fifteenth degree, at the same distance from the several common ancestors as ourselves are; besides those that are one or two descents nearer to or farther from the common stock, who may amount to as many more.10 And, if this calculation should appear incompatible with the number of inhabitants on the earth, it is because, by intermarriages among the several descendants from the same ancestor, a hundred or a thousand modes of consanguinity may be consolidated in one person, or he may be related to us a hundred or a thousand different ways.
The method of computing these degrees in the canon law,11 which our law has adopted,12 is as follows. We begin at the common ancestor, and reckon downwards; and in whatsoever degree the two persons, or the most remote of them, is distant from the common ancestor, that is the degree in which they are related to each other. Thus Titius and his brother are related in the first degree; for from the father to each of them is counted only one: Titius and his nephew are related in the second degree; for the nephew is two degrees removed from the common ancestor; viz. his own grandfather, the father of Titius. Or, (to give a more illustrious instance from our English annals) king Henry the seventh, who flew Richard the third in the battle of Bosworth, was related to that prince in the fifth degree. Let the propositus therefore in the table of consanguinity represent king Richard the third, and the class marked (e) king Henry the seventh. Now their common stock or ancestor was king Edward the third, the abavus [great great grandfather] in the same table: from him to Edmond duke of York, the proavus [great grandfather], is one degree; to Richard earl of Cambridge, the avus [grandfather], two; to Richard duke of York, the pater, three; to king Richard the third, the propositus, four: and from king Edward the third to John of Gant (a) is one degree; to John earl of Somerset (b) two; to John duke of Somerset (c) three; to Margaret countess of Richmond (d) four; to king Henry the seventh (e) five. Which last mentioned prince, being the farthest removed from the common stock, gives the denomination to the degree of kindred in the canon and municipal law. Though according to the computation of the civilians, (who count upwards, from either of the persons related, to the common stock, and then downwards again to the other; reckoning a degree for each person both ascending and descending) these two princes were related in the ninth degree: for from king Richard the third to Richard duke of York is one degree; to Richard earl of Cambridge, two; to Edmond duke of York, three; to king Edward the third, the common ancestor, four; to John of Gant, five; to John earl of Somerset, six; to John duke of Somerset, seven; to Margaret countess of Richmond, eight; to king Henry the seventh, nine.13
The nature and degrees of kindred being thus in some measure explained, I shall next proceed to lay down a series of rules, or canons of inheritance, according to which estates are transmitted from the ancestor to the heir; together with an explanatory comment, remarking their original and progress, the reasons upon which they are founded, and in some cases their agreement with the laws of other nations.
I. The first rule is, that inheritances shall lineally descend to the issue of the person last actually seized, in infinitum [forever]; but shall never lineally ascend.
To explain the more clearly both this and the subsequent rules, it must first be observed, that by law no inheritance can vest, nor can any person be the actual complete heir of another, till the ancestor is previously dead. Nemo est haeres viventis [no one is the heir of the living]. Before that time the time the person who is next in the line of succession is called an heir apparent, or heir presumptive. Heirs apparent are such, whose right of inheritance is indefeasible, provided they outlive the ancestor; as the eldest son or his issue, who must by the course of the common law be heirs to the father whenever he happens to die. Heirs presumptive are such, who, if the ancestor should die immediately, would in the present circumstances of things be his heirs; but whose right of inheritance may be defeated by the contingency of some nearer heir being born: as a brother, or nephew, whose presumptive succession may be destroyed by the birth of a child; or a daughter, whose present hopes may be hereafter cut off by the birth of a son. Nay, even if the estate has descended, by the death of the owner, to such brother, or nephew, or daughter; in the former cases the estate shall be divested and taken away by the birth of a posthumous child; and, in the latter, it shall also be totally divested by the birth of a posthumous son.14
We must also remember, that no person can be properly such an ancestor, as that an inheritance in lands or tenements can be derived from him, unless he has had actual seizin of such lands, either by his own entry, or by the possession of his own or his ancestor’s lessee for years, or be receiving rent from a lessee of the freehold:15 or unless he has had what is equivalent to corporal seizin in hereditaments that are incorporeal; such as the receipt of rent, a presentation to the church in case of an advowson,16 and the like. But he shall not be accounted an ancestor, who has had only a bare right or title to enter or be otherwise seized. And therefore all the cases, which will be mentioned in the present chapter, are upon the supposition that the deceased (whose inheritance is now claimed) was the last person actually seized thereof. For the law requires this notoriety of possession, as evidence that the ancestor had that property in himself, which is now to be transmitted to his heir. Which notoriety has succeeded in the place of the ancient feudal investiture, whereby, while feuds were precarious, the vassal on the descent of lands was formerly admitted in the lord’s court (as is still the practice in Scotland) and there received his seizin, in the nature of a renewal of his ancestors grant, in the presence of the feudal peers: till at length, when the right of succession became indefeasible, an entry on any part of the lands within the county (which if disputed was afterwards to be tried by those peers) or other notorious possession, was admitted as equivalent to the formal grant of seizin, and made the tenant capable of transmitting his estate by descent. The seizin therefore of any person, thus understood, makes him the root or stock, from which all future inheritance by right of blood must be derived: which is very briefly expressed in this maxim, seisina facit stipitem [seizin makes the stock].17
When therefore a person dies so seized, the inheritance first goes to his issue: as if there be Geoffrey, John, and Matthew, grandfather, father, and son; and John purchases land and dies; his son Matthew shall succeed him as heir, and not the grandfather Geoffrey; to whom the land shall never ascend, but shall rather escheat to the lord.18
This rule, so far as it is affirmative and relates to lineal descents, is almost universally adopted by all nations; and it seems founded on a principle of natural reason, that (whenever a right of property transmissible to representatives is admitted) the possessions of the parents should go, upon their decease, in the first place to their children, as those to whom they have give being, and for whom they are therefore bound to provide. But the negative branch, or total exclusion of parents and all lineal ancestors from succeeding to the inheritance of their offspring, is peculiar to our own laws, and such as have been deduced from the same original. For, by the Jewish law, on failure of issue the father succeeded to the son, in exclusion of brethren, unless one of them married the widow and raised up seed to his brother.19 And, by the laws of Rome, in the first place the children or lineal descendants were preferred; and, on failure of these, the father and mother or lineal ascendants succeeded together with the brethren and sisters;20 though by the law of the twelve tables the mother was originally, on account of her sex, excluded.21 Hence this rule of our laws has been censured and declaimed against, as absurd and derogating from the maxims of equity and natural justice.22 Yet that there is nothing unjust or absurd in it, but that on the contrary it is founded upon very good reason, may appear from considering as well the nature of the rule itself, as the occasion of introducing in into our laws.
We are to reflect, in the first place, that all rules of succession to estates are creatures of the civil polity, and juris positivi [positive law] merely. The right of property, which is gained by occupancy, extends naturally no farther than the life of the present possessor; after which the land by the law of nature would again become common, and liable to be seized by the next occupant: but society, to prevent the mischiefs that might ensue from a doctrine so productive of contention, has established conveyances, wills, and successions; whereby the property originally gained by possession is continued, and transmitted from one man to another, according to the rules which each state has respectively thought proper to prescribe. There is certainly therefore no injustice done to individuals, whatever be the path of descent marked out by the municipal law.
If we next consider the time and occasion of introducing this rule into our law, we shall find it to have been grounded upon very substantial reasons. I think there is no doubt to be made, but that it was introduced at the same time with, and in consequence of, the feudal tenures. For it was an express rule of the feudal law,23 that successionis feudi talis est natura, quod ascendentes non succedunt [the nature of feudal succession is such that those in the ascending line do not inherit]; and therefore the same maxim obtains also in the French law to this day.24, 25 Our Henry the first indeed, among other restorations of the old Saxon laws, restored the right of succession in the ascending line:26 but this soon fell again into disuse; for so early as Glanvil’s time, who wrote under Henry the second, we find it laid down as established law,27 that haereditas nunquam ascendit [inheritance never ascends]; which has remained an invariable maxim ever since. These circumstances evidently show this rule to be of feudal original; and, taken in that light, there are some arguments in its favor, besides those which are drawn merely from the reason of the thing. For if the feud, of which the son died seized, was really feudum antiquum [an ancient fee], or one descended to him from his ancestors, the father could not possibly succeed to it, because if must have passed him in the course of descent, before it could to the son; unless it were feudum maternum [a maternal fee], or one descended from his mother, and then for other reasons (which will appear hereafter) the father could in no wise inherit it. and if it were feudum novum [a new fee], or one newly acquired by the son, then only the descendants from the body of the feudatory himself could succeed, by the known maxim of the early feudal constitutions;28 which was founded as well upon the personal merit of the vassal, which might be transmitted to his children but could not ascend to his progenitors, as also upon this consideration of military policy, that the decrepit grandsire of a vigorous vassal would be but indifferently qualified to succeed him in his feudal services. Nay, even if this feudum novum were held by the son ut feudum antiquum [as an ancient fee], or with all the qualities annexed of a feud descended from his ancestors, such feud must in all respects have descended as if it had been really an ancient feud; and therefore could not go to the father, because, if it had been an ancient feud, the father must have been dead before t could have come to the son. Thus whether the feud was strictly novum, or strictly antiquum, or whether it was novum held ut antiquum, in none of these cases the father could possibly succeed. These reasons, drawn from the history of the rule itself, seem to be more satisfactory than that quaint one of Bracton,29 adopted by Sir Edward Coke,30 which regulates the descent of lands according to the laws of gravitation.
II. A second general rule or canon is, that the male issue shall be admitted before the female.
Thus sons shall be admitted before daughters; or, as our male lawgivers have somewhat uncomplaisantly expressed it, the worthiest of blood shall be preferred.31 As if John Stiles has two sons, Matthew and Gilbert, and two daughters, Margaret and Charlotte, and dies; first Matthew, and (in case of his death without issue) then Gilbert, shall be admitted to the succession in preference to both the daughters.
This preference of males to females is entirely agreeable to the law of succession among the Jews,32 and also among the states of Greece, or at least among the Athenians;33 but was totally unknown to the laws of Rome,34 (such of them, I mean, as are at present extant) wherein brethren and sisters were allowed to succeed to equal portions of the inheritance. I shall not here enter into the comparative merit of the roman and the other constitutions is this particular, nor examine into the greater dignity of blood in the male or female sex; but shall only observe, that our present preference of males to females seems to have arisen entirely from the feudal law. For though our British ancestors, the Welsh, appear to have given a preference to males,35 yet our subsequent Danish predecessors seem to have made no distinction of sexes, but to have admitted all the children at once to the inheritance.36 But the feudal law of the Saxons on the continent (which was probably brought over hither, and first altered by the law of king Canute) gives an evident preference of the male to the female sex. “Pater aut mater defuncti, filio non filiae haereditatem relinquent …. Qui defunctus non filios sed filias reliquerit, ad eas omnis haereditas pertineat.”37 [“The father or mother at their death shall leave their inheritance to their son not to their daughter …. If a man at his death leave no sons, but only daughters, then the whole inheritance shall belong to them.”] It is possible therefore that this preference might be a branch of that imperfect system of feuds, which obtained here before the conquest; especially as it subsists among the customs of gavelkind, and as, in the charter or laws of king Henry the first, it is not (like many Norman innovations) given up, but rather enforced.38 The true reason of preferring the males must be deduced from feudal principles: for, by the genuine and original policy of that constitution, no female could ever succeed to a proper feud,39 inasmuch as they were incapable of performing those military services, for the sake of which that system was established. But our law does not extend to a total exclusion of females, as the Salic law, and others, where feuds were most strictly retained: it only postpones them to males; for, though daughters are excluded by sons, yet they succeed before any collateral relations: our law, like that of the Saxon feudists before-mentioned, thus steering a middle course, between the absolute rejection of females, and the putting them on a footing with males.
III. A third rule, or canon of descent, is this; that, where there are two or more males in equal degree, the eldest only shall inherit; but the females all together.
As if a man has two sons, Matthew and Gilbert, and two daughters, Margaret and Charlotte, and dies; Matthew his eldest son shall alone succeed to his estate, in exclusion of Gilbert the second son and both the daughters: but, if both the sons die without issue before the father, the daughters Margaret and Charlotte shall both inherit the estate as coparceners.40
This right of primogeniture in males seems anciently to have only obtained among the Jews, in whose constitution the eldest son had a double portion of the inheritance;41 in the same manner as with us, by the laws of king Henry the first,42 the eldest son had the capital fee or principal feud of his father’s possessions, and no other pre-eminence; and as the eldest daughter had afterwards the principal mansion, when the estate descended in coparcenary.43 The Greeks, the Romans, the Britons, the Saxons, and even originally the feudists, divided the lands equally; some among all the children at large, some the males only. This is certainly the most obvious and natural way; and has the appearance, at least in the opinion of younger brothers, of the greatest impartiality and justice. But when the emperors began to create honorary feuds, or titles of nobility, it was found necessary (in order to preserve their dignity) to make them impartible [indivisible],44 or (as they styled them) feuda individua [an impartible fee], and in consequence descendible to the eldest son alone. This example was farther enforced by the inconveniences that attended the splitting of estates; namely, the division of the military services, the multitude of infant tenants incapable of performing any duty, the consequential weakening of the strength of the kingdom, and the inducing younger sons to take up with the business and idleness of a country life, instead of being serviceable to themselves and the public, by engaging in mercantile, in military, in civil, or in ecclesiastical employments.45 These reasons occasioned an almost total change in the method of feudal inheritances abroad; so that the eldest male began universally to succeed to the whole of the lands in all military tenures: and in this condition the feudal constitution was established in England by William the conqueror.
Yet we find, that socage estates frequently descended to all the sons equally, so lately as when Glanvil46 wrote, in the reign of Henry the second; and it is mentioned in the mirror47 as a part of our ancient constitution, that knights’ fees should descend to the eldest son, and socage fees should be partible among the male children. However in Henry the third’s time we find by Bracton48 that socage lands, in imitation of lands in chivalry, had almost entirely fallen into the right of succession by primogeniture, as the law now stands: except in Kent, where they gloried in the preservation of their ancient gavelkind tenure, of which a principal branch was the joint inheritance of all the sons;49 and except in some particular manors and townships, where their local customs continued the descent, sometimes to all, sometimes to the youngest son only, or in other more singular methods of succession.
As to the females, they are still left as they were by the ancient law: for they were all equally incapable of performing any personal service; and therefore, one main reason of preferring the eldest ceasing, such preference would have been injurious to the rest: and the other principal purpose, the prevention of the too minute subdivision of estates, was left to be considered and provided for by the lords, who had the disposal of these female heiresses in marriage. However, the succession by primogeniture, even among females, took place as to the inheritance of the crown;50 wherein the necessity of a sole and determinate succession is as great in the one sex as the other. And the right of sole succession, though not of primogeniture, was also established with respect to female dignities and titles of honor. For if a man holds an earldom to him and the heirs of his body, and dies, leaving only daughters; the eldest shall not of course be countess, but the dignity is in suspense or abeyance till the king shall declare his pleasure; for he, being the fountain of honor, may confer it on which of them he pleases.51 In which disposition is preserved a strong trace of the ancient law of feuds, before their descent by primogeniture even among the males was established; namely, that the lord might bestow them on which of the sons he thought proper: ” progressum est ut ad filios deveniret, in quem scilicet dominus hoc vellet beneficium confirmare.”52 [“It was customary for it to descend to the sons, that is, to him on whom the lord wished to settle the estate.”]
IV. A fourth rule, or canon of descents, is this; that the lineal descendants, in infinitum, of any person deceased shall represent their ancestor; that is, shall stand in the same place as the person himself would have done, had he been living.
Thus the child, grandchild, or great-grandchild (either male or female) of the eldest son succeeds before the younger son, and so in infinitum.53 And these representatives shall take neither more nor less, but just so much as their principals would have done. As if there be two sisters, Margaret and Charlotte; and Margaret dies, leaving six daughters; and then John Stiles the father of the two sisters dies, without other issue: these six daughters shall take among them exactly the same as their mother Margaret would have done, had she been living; that is, a moiety of the lands of John Stiles in coparcenary: so that, upon partition made, if the land be divided into twelve parts, thereof Charlotte the surviving sister shall have six, and her six nieces, the daughters of Margaret, one apiece.
This taking by representation is called a succession in stirpes, according to the roots; since all the branches inherit the same share that their root, whom they represent, would have done. And in this manner also was the Jewish succession directed;54 but the Roman somewhat differed from it. In the descending line the right of representation continued in infinitum, and the inheritance still descended in stirpes: as if one of three daughters died, leaving ten children, and then the father died; the two surviving daughters had the remaining third divided between them. And so among collaterals, if any persons of equal degree with the persons represented were still subsisting, (as if the deceased left one brother, and two nephews the sons of another brother) the succession was still guided by the roots: but, if both the brethren were dead leaving issue, then (I apprehend) their representatives in equal degree became themselves principals, and shared the inheritance per capita [per person], that is, share and share alike; they being themselves now the next in degree to the ancestor, in their own right, and not by right of representation.55 So, if the next heirs of Titius be six nieces, three by one sister, two by another, and one by a third; his inheritance by the Roman law was divided into six parts, and one given to each of the nieces: whereas the law of England in this case would still divide it only into three parts, and distribute it per stirpes, thus; one third to the three children who represent one sister, another third to the two who represent the second, and the remaining third to the one child who is the sole representative of her mother.
This mode of representation is a necessary consequence of the double preference given by our law, first to the male issue, and next to the firstborn among the males, to both which the Roman law is a stranger. For if all the children of three sisters were in England to claim per capita, in their own rights as next of kin to the ancestor, without any respect to the stocks from whence they sprung, and those children were partly male and partly female; then the eldest male among them would exclude not only his own brethren and sisters, but all the issue of the other two daughters; or else the law in this instance must be inconsistent with itself, and depart from the preference which it constantly gives to the males, and the firstborn, among persons in equal degree. Whereas, by dividing the inheritance according to the roots or stirpes, the rule of descent is kept uniform and steady: the issue of the eldest son excludes all other pretenders, as the son himself (if living) would have done; but the issue of two daughters divide the inheritance between them, provided their mothers (if living) would have done the same: and among these several issues, or representatives of the respective roots, the same preference to males and the same right of primogeniture obtain, as would have obtained at the first among the roots themselves, the sons or daughters of the deceased. As if a man has two sons, A and B, and A dies leaving two sons, and then the grandfather dies; now the eldest son of A shall succeed to the whole of his grandfather’s estate: and if A had left only two daughters, they should have succeeded also to equal moieties of the whole, in exclusion of B and his issue. But if a man has only three daughters, C, D, and E; and C dies leaving two sons, D leaving two daughters, and E leaving a daughter and a son who is younger than his sister: here, when the grandfather dies, the eldest son of C shall succeed to one third, in exclusion of the younger; the two daughters of D to another third in partnership; and the son of E to the remaining third, in exclusion of his elder sister. And the same right of representation, guided and restrained by the same rules of descent, prevails downwards in infinitum.
Yet this right does not appear to have been thoroughly established in the time of Henry the second, when Glanvil wrote; and therefore, in the title to the crown especially, we find frequent contests between the younger (but surviving) brother, and his nephew (being the son and representative of the elder deceased) in regard to the inheritance of their common ancestor: for the uncle is certainly nearer of kin to the common stock, by one degree, than the nephew; though the nephew, by representing his father, has in him the right of primogeniture. The uncle also was usually better able to perform the services of the fief; and besides had frequently superior interest and strength, to back his pretensions and crush the right of his nephew. And even to this day, in the lower Saxony, proximity of blood takes place of representative primogeniture; that is, the younger surviving brother is admitted to the inheritance before the son of an elder deceased: which occasioned the disputes between the two houses of Mecklenburg, Schwerin and Strelitz, in 1692.56 Yet Glanvil, with us, even in the twelfth century, seems57 to declare for the right of the nephew by representation; provided the eldest son had not received a provision in lands from his father, (or as the civil law would call it) had not been forisfamiliated, in his life-time. King John, however, who kept his nephew Arthur from the throne, by disputing this right of representation, did all in his power to abolish it throughout the realm:58 but in the time of his son, king Henry the third, we find the rule indisputably settled in the manner we have here laid it down,59 and so it has continued ever since. And thus much for lineal descents.
V. A fifth rule is, that, on failure of lineal descendants, or issue, of the person last seized, the inheritance shall descend to the blood of the first purchaser; subject to the three preceding rules.
Thus if Geoffrey Stiles purchases land, and it descends to John Stiles his son, and John dies seized thereof without issue; whoever succeeds to this inheritance must be of the blood of Geoffrey the first purchaser of this family.60 The first purchaser, perquisitor, is he who first acquired the estate to his family, whether the same was transferred to him by sale, or by gift, or by any other method, except only that of descent.
This is a rule almost peculiar to our own laws, and those of a similar original. For it was entirely unknown among the Jews, Greeks, and Romans: none of whose laws looked any farther than the person himself who died seized of the estate; but assigned him an heir, without considering by what title he gained it, or from what ancestor he derived it. but the law of Normandy61 agrees with our law in this respect: nor indeed is that agreement to be wondered at, since the law of descents in both is of feudal original; and this rule or canon cannot otherwise be accounted for than by recurring to feudal principles.
When feuds first began to be hereditary, it was made a necessary qualification of the heir, who would succeed to a feud, that he should be of the blood of, that is lineally descended from, the first feudatory or purchaser. In consequence whereof, if a vassal died possessed of a feud of his own acquiring, or feudum novum, it could not descend to any but his own offspring; no, not even to his brother, because he was not descended, nor derived his blood, from the first acquirer. But if it was feudum antiquum, that is, one descended to the vassal from his ancestors, then his brother, or such other collateral relation as was descended and derived his blood from the first feudatory, might succeed to such inheritance. To this purpose speaks the following rule, “frater fratri, sine legitimo haerede defuncto, in beneficio quod eorum patris fuit succedat: sin autem unus e fratribus a domino feudum acceperit, eo defuncto sine legitimo haerede, frater ejus in feudum non succedit.”62 [“A brother may succeed to his brother dying without a lawful heir, in the estate which was their father’s: but if one of the brothers shall have received the fee from his lord, and die without a lawful heir, his brother does not succeed.”] The true feudal reason for which rule was this; that what was given to a man, for his personal service and personal merit, ought not to descend to any but the heirs of his person. And therefore, as in estates-tail, (which a proper feud very much resembled) so in the feudal donation, “nomen haeredis, in prima investitura expressum, tantum ad descendentes ex corpore primi vasalli extenditur; et non ad collaterales, nisi ex corpore primi vasalli sive stipitis descendant“63 [“the name of heir expressed in the first investiture extends only to the descendants of the body of the first vassal, and not to the collaterals unless they descend from the body of the first vassal or stock”]: the will of the donor, or original lord, (when feuds were turned from life estates into inheritances) not being to make them absolutely hereditary, like the Roman allodium, but hereditary only sub modo [in a particular way]; not hereditary to the collateral relations, or lineal ancestors, or husband, or wife of the feudatory, but to the issue descended from his body only.
However, in process of time, when the feudal rigor was in part abated, a method was invented to let in the collateral relations of the grantee to the inheritance, by granting him a feudum novum to hold ut feudum antiquum; that is with all the qualities annexed of a feud derived from his ancestors; and then the collateral relations were admitted to succeed even in infinitum, because they might have been of the blood of, that is descended from, the first imaginary purchaser. For since it is not ascertained in such general grants, whether this feud shall be held ut feudum paternum, or feudum avitum, but ut feudum antiquum merely, as a feud of indefinite antiquity; that is, since it is not ascertained from which of the ancestors of the grantee this feud shall be supposed to have descended; the law will not ascertain it, but will supposed any of his ancestors, pro re nata [for the occasion], to have been the first purchaser: and therefore it admits any of his collateral kindred (who have the other necessary requisites) to the inheritance, because every collateral kinsman must be descended from some one of his lineal ancestors.
Of this nature are all the grants of fee-simple estates of this kingdom; for there is now in the law of England no such thing as a grant of a feudum novum, to be held ut novum; unless in the case of a fee-tail, and there we see that this rule is strictly observed, and none but the lineal descendants of the first donee (or purchaser) are admitted: but every grant of lands in fee-simple is with us a feudum novum to held ut antiquum, as a feud whose antiquity is indefinite; and therefore the collateral kindred of the grantee, or descendants from any of his lineal ancestors, by whom the lands might have possibly been purchased, are capable of being called to the inheritance.
Yet, when an estate has really descended in a course of inheritance to the person last seized, the strict rule of the feudal law is still observed; and none are admitted, but the heirs of those through whom the inheritance has passed: for all others have demonstrably none of the blood of the first purchaser in them, and therefore shall never succeed. As, if lands come to John Stiles by descent from his mother Lucy Baker, no relation of his father (as such) shall ever be h is heir of these lands; and, vice versa, if they descended from his father Geoffrey Stiles, no relation of his mother (as such) shall ever be admitted thereto; for his father’s kindred have none of his mother’s blood, nor have his mother’s relations any share of his father’s blood. And so, if the estate descended from his father’s father, George Stiles; the relations of his father’s mother, Cecilia Kempe, shall for the same reason never be admitted, but only those of his father’s father. This is also the rule of the French law,64 which is derived from the same feudal fountain.
Here we may observe, that, so far as the feud is really antiquum, the law traces it back, and will not suffer any to inherit but the blood of those ancestors, from whom the feud was conveyed to the late proprietor. But when, through length of time, it can trace it no farther; as if it be not known whether his grandfather, George Stiles, inherited it from his father Walter Stiles, or his mother Christian Smith; or if it appear that his grandfather was the first grantee, and so took it (by the general law) as a feud of indefinite antiquity; in either of these cases the law admits the descendants of any ancestor of George Stiles, either paternal or maternal, to be in their due order the heirs to John Stiles of this estate: because in the first case it is really uncertain, and in the second case it is supposed to be uncertain, whether the grandfather derived his title from the part of his father or his mother.
This then is the great and general principle, upon which the law of collateral inheritances depends; that, upon failure of issue in the last proprietor, the estate shall descend to the blood of the first purchaser; or, that it shall result back to the heirs of the body of that ancestor, from whom it either really has, or is supposed by fiction of law to have, originally descended: according to the rule laid down in the yearbooks,65 Fitzherbert,66 Brook,67 and Hale;68 “that he who would have been heir to the father of the deceased” (and, of course, to the mother, or any other purchasing ancestor) “shall also be heir to the son.”
The remaining rules are only rules of evidence, calculated to investigate who that purchasing ancestor was; which, in feudis vere antiquis [in fees really ancient], has in process of time been forgotten, and is supposed so to be in feuds that are held ut antiquis.
VI. A sixth rule or canon therefore is, that the collateral heir of the person last seized must be his next collateral kinsman, of the whole blood.
First, he must be his next collateral kinsman, either personally or jure representationis [by right of representation]; which proximity is reckoned according to the canonical degrees of consanguinity before-mentioned. Therefore, the brother being in the first degree, he and his descendants shall exclude the uncle and his issue, who is only in the second. And herein consists the true reason of the different methods of computing the degrees of consanguinity, in the civil law on the on hand, and it the canon and common laws on the other. The civil law regards consanguinity principally with respect to successions, and therein very naturally considers only the person deceased, to whom the relation is claimed: it therefore counts the degrees of kindred according to the number of persons through whom the claim must be derived from him; and makes not only his great-nephew but also his first-cousin to be both related to him in the fourth degree; because there are three persons between him and each of them. The canon law regards consanguinity principally with a view to prevent incestuous marriages, between those who have a large portion of the same blood running in their respective veins; and therefore looks up to the author of that blood, or the common ancestor, reckoning the degrees from him: so that the great-nephew is related in the third canonical degree to the person proposed, and the first-cousin in the second; the former being distant three degrees from the common ancestor, and therefore deriving only one fourth of his blood from the same fountain with propositus; the later, and also the propositus, being each of them distant only two degrees from the common ancestor, the therefore having one half of each of their bloods the same. The common law regards consanguinity principally with respect to descents; and, having therein the same object in view as the civil, it may seem as if it ought to proceed according to the civil computation. But as it also respect the purchasing ancestor, from whom the estate was derived, it therein resembles the canon law, and therefore courts its degrees in the same manner. Indeed the designation of person (in seeking for the next of kin) will come to exactly the same end (though the degrees will be differently numbered) whichever method of computation we supposed the law of England to use; since the right of representation (of the father by the son, etc) is allowed to prevail in infinitum. This allowance was absolutely necessary, else there would have frequently been many claimants in exactly the same degree of kindred, as (for instance) uncles and nephews of the deceased; which multiplicity, though no inconvenience in the Roman law of partible inheritances, yet would have been productive of endless confusion where the right of sole succession, as with us, is established. The issue or descendants therefore of John Stiles’s brother are all of them in the first degree of kindred with respect so inheritances, as their father also, when living was; those of his uncle in the second; and so on; and are severally called to the succession in right of such their representative proximity.
The right of representation being thus established, the former part of the present rule amounts to this; that, on failure of issue of the person last seized, the inheritance shall descend to the issue of his next immediate ancestor. Thus if John Stiles dies without issue, his estate shall descend to Francis his brother, who is lineally descended from Geoffrey Stiles his next immediate ancestor, or father. On failure of brethren, or sisters, and their issue, it shall descend to the uncle of John Stiles, the lineal descendant of his grandfather George, and so on in infinitum. Very similar to which was the law of inheritance among the ancient Germans, our progenitors: “haeredes successoresque sui cuique liberi et nullum testamentum: si liberi non sunt, proximus gradus in possessione, fratres, patrui, avunculi.”69 [“Every man’s children are his heirs and successors if there be no will. If there be no children the next in degree shall be seised, as brothers, uncles on the father’s side, uncles on the mother’s side.”]
Now here it must be observed, that the lineal ancestors, though (according to the first rule) incapable themselves of succeeding to the estate, because it is supposed to have already passed them, are yet common stocks from which the next successor must spring. And therefore in the Jewish law, which in this respect entirely corresponds with ours,70 the father or other lineal ancestor is himself said to be the heir, though long since dead as being represented by the persons of his issue; who are held to succeed not in their own rights, as brethren, uncles, etc, but in right of representation, as the sons of the father, grandfather, etc, of the deceased.71 But, though the common ancestor be thus the root of the inheritance, yet with us it is not necessary to name him in making out the pedigree or descent. For the descent between two brothers is held to be an immediate descent; and therefore title may be made by one brother or his representatives to or through another, without mentioning their common father.72 If Geoffrey Stiles has two sons, John and Francis, Francis may claim as heir to John, without naming their father Geoffrey: and so the son of Francis may claim as cousin and heir to Matthew the son of John, without naming the grandfather; viz as son of Francis, who was the brother of John, who was the father Matthew. But through the common ancestors are not named in deducing the pedigree, yet the law still respects them as the fountains of inheritable blood: and therefore in order to ascertain the collateral heir of John Stiles, it is in the first respects them as the fountains of inheritable blood: and therefore in order to ascertain the collateral heir of John Stiles, it is in the first place necessary to recur to his ancestors in the first degree; and if they have left any other issue besides John, that issue will be his heir. On default of such, we must ascend one step higher to the ancestors in the second degree, and then to those in the third, and fourth, and so upwards in infinitum; till some ancestors be found, who have other issue descending from them besides the deceased, in a parallel or collateral line. Form these ancestors the heir of John Stiles must derive his descent; and in such derivation the same rules must be observed, with regard to sex, primogeniture, and representation, that have just been laid down with regard to lineal descents from the person of the last proprietor.
But, secondly, the heir need not be the nearest kinsman absolutely, but only sub modo; that is, he must be the nearest kinsman of the whole blood; for, if there be a much nearer kinsman of the half blood, a distant kinsman of the whole blood shall be admitted, and the other entirely excluded.
A kinsman of the whole blood is he that is derived, not only from the same ancestor, but from the same couple of ancestors. For, as every man’s own blood is compounded of the bloods of his respective ancestors, he only is properly of the whole or entire blood with another, who has (so far as the distance of degrees will permit) all the same ingredients in the composition of his blood that the other has. Thus, the blood of John Stiles being composed of those of Geoffrey Stiles his father and Lucy Baker his mother, therefore his brother Francis, being descended from both the same parents, has entirely the same blood with John Stiles; or, he is his brother of the whole blood. But if, after the death of Geoffrey, Lucy Baker the mother marries a second husband, Lewis Gay, and has issue by him; the blood of this issue, being compounded of the blood of Lucy Baker (if is true) on the one part, but of that of Lewis Gay (instead of Geoffrey Stiles) on the other part, it has therefore only half the same ingredients with that of John Stiles; so that he is only his brother of the half blood, and for that reason they shall never inherit to each other. So also, if the father has two sons, A and B, by different venters or wives; now these two brethren are not brethren of the whole blood, and therefore shall never inherit to each other, but the estate shall rather escheat to the lord. Nay, even if the father dies, and his lands descend to his eldest son A, who enters thereon, and dies seized without issue; still B shall not be heir to this estate, because he is only of the half blood to A, the person last seized: but, had A died without entry, then B might have inherited; not as heir to A his half-brother, but as heir to their common father, who was the person last actually seized.73
This total exclusion of the half blood from the inheritance, being almost peculiar to our own law, is looked upon as a stranger hardship by such as are unacquainted with the reasons on which it is grounded. But these censures arise from a misapprehension of the rule; which is not so much to be considered in the light of a rule of descent, as of a rule of evidence; an auxiliary rule, to carry a former into execution. And here we must again remember, that the great and most universal principle of collateral inheritances being this, that an heir to a feudum antiquum must be of the blood of the first feudatory or purchaser, that is, derived in a lineal descent from him; it was originally requisite, as upon gifts in tail it still is, to make out the pedigree of the heir from the first donee or purchaser, and to show that such heir was his lineal representative. But when, by length of time and a long course of descents, it came (in those rude and unlettered ages) to be forgotten who was really the first feudatory or purchaser, and thereby the proof of an actual descent from him became impossible; proof: for it remits the proof of an actual descent from the first purchaser; and only requires, in lieu of it, that the claimant be next of the whole blood to the person last in possession; (or derived from the same couple of ancestors) which will probably answer the same end as if he could trace his pedigree in a direct line from the first purchaser. For he who is my kinsman of the whole blood can have no ancestors beyond or higher than the common stock, but what are equally my ancestors also; and mine are vice versa his: he therefore is very likely to be derived from that unknown ancestor of mine, from whom the inheritance descended. But a kinsman of the half blood has but one half of his ancestors above the common stock the same as mine; and therefore there is not the same probability of that standing requisite in the law, that he be derived from the blood of the first purchaser.
To illustrate this by example. Let there be John Stiles, and Francis, brothers by the same father and mother, and another son of the same mother by Lewis Gay a second husband. Now, if John dies seized of lands, but it is uncertain whether they descended to him from his father or mother; in this case his brother Francis, of the whole blood, is qualified to be his heir; for he is sure to be in the line of descent from the first purchaser, whether it were the line of the father or the mother. But if Francis should die before John, without issue, the mother’s son by Lewis Gay (or brother of the half blood) is utterly incapable of being heir; for he cannot prove his descent from the first purchaser, who is unknown, nor has he that fair probability which the law admits as presumptive evidence, since he is to the full as likely not to be descended from the line of the first purchaser, as to be descended: and therefore the inheritance shall go to the nearest relation possessed of this presumptive proof, the whole blood.
And, as this is the case in feudis antiquis, where there really did once exist a purchasing ancestor, who is forgotten; it is also the case in feudis novis held ut antiquis, where the purchasing ancestor is merely ideal, and never existed but only in fiction of law. Of this nature are all grants of lands in fee-simple at this day, which are inheritable as if they descended from some uncertain indefinite ancestor, and therefore any of the collateral kindred of the real modern purchaser (and not his own offspring only) may inherit them, provided they be of the whole blood; for all such are, in judgment of law, likely enough to be derived from this indefinite ancestor: but those of the half blood are excluded, for want of the same probability. Nor should this be thought hard, that a brother of the purchaser, though only of the half blood, must thus be disinherited, and a more remote relation of the whole blood admitted, merely upon a supposition and fiction of law; since it is only upon a like supposition and fiction, that brethren of purchasers (whether of the whole or half blood) are entitled to inherit at all: for we have seen that in feudis strictè novis [in fees strictly new] neither brethren nor any other collaterals were admitted. As therefore in feudis antiquis we have seen the reasonableness of excluding the half blood, if by a fiction of law a feudum novum be made descendible to collaterals as if it was feudum antiquum, it is just and equitable that it should be subject to the same restrictions as well as the same latitude of descent.
Perhaps by this time the exclusion of the half blood does not appear altogether so unreasonable, as at first fight it is apt to do. It is certainly a very fine-spun and subtle nicety: but, considering the principles upon which our law is founded, it is neither an injustice nor a hardship; since even the succession of the whole blood was originally a beneficial indulgence, rather than the strict right of collaterals: and, though that indulgence is not extended to the demi-kindred, yet they are rarely abridged of any right which they could possibly have enjoyed before. The doctrine of whole blood was calculated to supply the frequent impossibility of proving a descent from the first purchaser, without some proof of which (according to our fundamental maxim) there can be no inheritance allowed of. And this purpose it answers, for the most part, effectually enough. I speak with these restrictions, because it does not, neither can any other method, answer this purpose entirely. For though all the ancestors of John Stiles, above the common stock, are also the ancestors of his collateral kinsman of the whole flood; yet, unless that common stock be in the first degree, (that is, unless they have the same father and mother) there will be intermediate ancestors below the common stock, that may belong to either of them respectively, from which the other is not descended, and therefore can have none of their blood. Thus, though John Stiles and his brother of the whole blood can each have no other ancestors, than what are in common to them both; yet with regard to his uncle, where the common stock is removed one degree higher, (that is, the grandfather and grandmother) one half of John’s ancestors will not be the ancestors of his uncle: his patruus, or father’s brother, derives not his descent from John’s maternal ancestors; nor his avunculus, or mother’s brother, from those in the paternal line. Here then the supply of proof is deficient, and by no means amounts to a certainty: and, the higher the common stock is removed, the more will even the probability decrease. But it must be observed, that (upon the same principles of calculation) the half blood have always a much less chance to be descended from an unknown indefinite ancestor of the deceased, than the whole blood in the same degree. As, in the first degree, John’s uncle of the whole blood has an even chance; but the chances are three to one against his uncle of the half blood, for three fourths of John’s ancestors are not his. In like manner, in the third degree, the chances are only three to one against John’s great uncle of the whole blood, but they are seven to one against his great uncle of the half blood, for seven eighths so John’s ancestors have no connection in blood with him. Therefore the much less probability of the half blood’s descent from the first purchaser, compared with that of the whole blood, in the several degrees, has occasioned a general exclusion of the half blood in all.
But, while I thus illustrate the reason of excluding the half blood in general, I must be impartial enough to own, that, in some instances, the practice is carried farther than the principle upon which it goes will warrant. Particularly, when a man has two sons by different venters, and the estate on his death descends from him to the eldest, who enters, and dies without issue: now the younger son cannot inherit this estate, because he is not of the whole blood to the last proprietor. This, it must be owned, carries a hardship with it, even upon feudal principles: for the rule was introduced only to supply the proof of a descent from the first purchaser; but here, as this estate notoriously descended from the father, and as both the brothers confessedly sprung from him, it is demonstrable that the half brother must be of the blood of the first purchaser, who was either the father or some of the father’s ancestors. When therefore there is actual demonstration of the thing to be proved, it is hard to exclude a man by a rule substituted to supply that proof when deficient. So far as the inheritance can be evidently traced back, there seems no need of calling in this presumptive proof, this rule of probability, to investigate what is already certain. Had the elder brother indeed been a purchaser, there would have been no hardship at all, for the reasons already given: or had the frater uterinus only, or brother by the mother’s side, been excluded from an inheritance which descended from the father, it had been highly reasonable.
Indeed it is this very instance, of excluding a frater consanguineus, or brother by the father’s side, from an inheritance which descended a patre [from the father], that Craig74 has singled out, on which to ground his strictures on the English law of half blood. And, really, it should seem, as if the custom of excluding the half blood in Normandy75 extended only to exclude a frater uterinus, when the inheritance descended a patre, and vice versa: as even with us it remained a doubt, in the time of Bracton,76 and of Fleta,77 whether the half blood on the father’s side were excluded from the inheritance which originally descended from the common father, or only from such as descended from the respective mothers, and from newly purchased lands. And the rule of law, as laid down by our Fortescue,78 extends no farther than this; frater fratri uterino non succedet in haereditate paternâ [a brother shall not succeed in the paternal inheritance to his brother by the mother’s side]. It is moreover worthy of observation, that by our law, as it now stands, the crown (which is the highest inheritance in the nation) may descend to the half blood of the preceding sovereign,79 so as it be the blood of the first monarch, purchaser, or (in the feudal language) conqueror, of the reigning family. Thus it actually did descend from king Edward the sixth to queen Mary, and from her to queen Elizabeth, who were respectively of the half blood to each other. For, the royal pedigree being always a matter of sufficient notoriety, there is no occasion to call in the aid of this presumptive rule of evidence, to render probable the descent from the royal stock; which was formerly king William the Norman, and is now (by act of parliament80) the princess Sophia of Hanover. Hence also it is, that in estates-tail, where the pedigree from the first donee must be strictly proved, half blood is no impediment to the descent:81 because, when the lineage is clearly made out, there is no need of this auxiliary proof. How far it might be desirable for the legislature to give relief, by amending the law of descents in this single instance, and ordaining that the half blood might inherit, where the estate notoriously descended from its own proper ancestor, but not otherwise; or how far a private inconvenience should be submitted to, rather than a long established rule should be shaken; it is not for me to determine.
The rule then, together with its illustration, amounts to this: that, in order to keep the estate of John Stiles as nearly as possible in the line of his purchasing ancestor, it must descend to the issue of the nearest couple of ancestors that have left descendants behind them; because the descendants of one ancestor only are not so likely to be in the line of that purchasing ancestor, as those who are descended from two.
But here another difficulty arises. In the second, third, fourth, and every superior degree, every man has many couples of ancestors, increasing to the distances in a geometrical progression upwards,82 the descendants of all which respective couples are (representatively) related to him in the same degree. Thus in the second degree, the issue of George and Cecilia Stiles and of Andrew and Esther Baker, the two grandsires and grandmothers of John Stiles, are each in the same degree of propinquity; in the third degree, the respective issues of Walter and Christian Stiles, of Luke and Frances Kempe, of Herbert and Hannah Baker, and of James and Emma Thorpe, are (upon the extinction of the two inferior degrees) all equally entitled to call themselves the next kindred of the whole blood to John Stiles. To which therefore of these ancestors must we first resort, in order to find out descendants to be preferably called to the inheritance? In answer to this, and to avoid the confusion and uncertainty that must arise between the several stocks, wherein the purchasing ancestor may be sought for,
VII. The seventh and last rule or canon is, that in collateral inheritances the male stocks shall be preferred to the female; (that is, kindred derived from the blood of the male ancestors shall be admitted before those from the blood of the female) unless where the lands have, in fact, descended from a female.
Thus the relations on the father’s side are admitted in infinitum, before those on the mother’s side are admitted at all;83 and the relations of the father’s father, before those of the father’s mother; and so on. And in this the English law is not singular, but warranted by the examples of the Hebrew and Athenian laws, as stated by Selden,84 and Petit;85 though among the Greeks, in the time of Hefiod,86 when a man died without wife or children, all his kindred (without any distinction) divided his estate among them. It is likewise warranted by the example of the Roman laws; wherein the agnati, or relations by the father, were preferred to the cognati, or relations by the mother, till the edict of the emperor Justinian87 abolished all distinction between them. It is also conformable to the customary law of Normandy,88 which indeed in most respects agrees with our law of inheritance.
However, I am inclined to think, that this rule of our laws does not owe its immediate original to any view of conformity to those which I have just now mentioned; but was established in order to effectuate and carry into execution the fifth rule or canon before laid down; that every heir must be of the blood of the first purchaser. For, when such first purchaser was not easily to be discovered after a long course of descents, the lawyers not only endeavored to investigate him by taking the next relation of the whole blood to the person last in possession; but also, considering that a preference had been given to males (by virtue of the second canon) through the whole course of lineal descent from the first purchaser to the present time, they judged it more likely that the lands should have descended to the last tenant from his male than from his female ancestors; from the father (for instance) rather than from the mother; from the father’s father, rather than the father’s mother: and therefore they hunted back the inheritance (if I may be allowed the expression) through the male line; and gave it to the next relations on the side of the father, the father’s father, and so upwards; imagining with reason that this was the most probable way of continuing it in the line of the first purchaser. A conduct much more rational than the preference of the agnati by the Roman laws: which, as they gave no advantage to the males in the first instance or direct lineal succession, had no reason for preferring them in the transverse collateral one: upon which account this preference was very wisely abolished by Justinian.
That this was the true foundation of the preference of the agnati or male stocks, in our law, will farther appear if we consider, that, whenever the lands have notoriously descended to a man from his mother’s side, this rule is totally reversed, and no relation of his by the father’s side, as such, can ever be admitted to them; because he cannot possibly be of the blood of the first purchaser. And so, e converso, if the lands descended from the father’s side, no relation of the mother, as such, shall ever inherit. So also, if they in fact descended to John Stiles from his father’s mother Cecilia Kempe; here not only the blood of Lucy Baker his mother, but also of George Stiles his father’s father, is perpetually excluded. And, in like manner, if they be known to have descended from Frances Holland the mother of Cecilia Kempe, the line not only of Lucy Baker, and of George Stiles, but also of Luke Kempe the father of Cecilia, is excluded. Whereas when the side from which they descended is forgotten, or never known, (as in the case of an estate newly purchased to be held ut feudum antiquum) here the right of inheritance first runs up all the father’s side, with preference to the male stocks in every instance; and, if it finds no heirs there, it then, and then only, resorts to the mother’s side; leaving no place untried, in order to find heirs that may by possibility be derived from the original purchaser. The greatest probability of finding such was among those descended from the male ancestors; but, upon failure of issue there, they may possibly be found among those derived from the females.
This I take to be the true reason of the constant preference of the agnatic succession, or issue derived from the male ancestors, though all the stages of collateral inheritance; as the ability for personal service was the reason for preferring the males at first in the direct lineal succession. We see clearly, that, if males had been perpetually admitted, in utter exclusion of females, the tracing the inheritance back through the male line of ancestors must at last have inevitably brought us up to the first purchaser: but, as males have not been perpetually admitted, but only generally preferred; as females have not been utterly excluded, but only generally postponed to males; the tracing the inheritance up through the male stocks will not give us absolute demonstration, but only a strong probability, of arriving at the first purchaser; which, joined with the other probability, of the wholeness or entirety of blood, will fall little short of a certainty.
Before we conclude this branch of our inquiries, it may not be amiss to exemplify these rules by a short sketch of the manner in which we must search for the heir of a person, as John Stiles, who dies seized of land which he acquired, and which therefore he held as a feud of indefinite antiquity.89
In the first place succeeds the eldest son, Matthew Stiles, or his issue: (No. 1.) if his line be extinct, then Gilbert Stiles and the other sons, respectively, in order of birth, or their issue: (No. 2.) in default of these, all the daughters together, Margaret and Charlotte Stiles, or their issue. (No. 3.) On failure of the descendants of John Stiles himself, the issue of Geoffrey and Lucy Stiles, his parents, is called in: viz. first, Francis Stiles, the eldest brother of the whole blood, or his issue: (No. 4.) then Oliver Stiles, and the other whole brothers, respectively, in order of birth, or their issue: (No. 5.) then the sisters of the whole blood, all together, Bridget and Alice Stiles, or their issue. (No. 6.) In defect of these, the issue of George and Cecilia Stiles, his father’s parents; respect being fill had to their age and sex: (No. 7.) then the issue of Walter and Christian Stiles the parents of his paternal grandfather: (No. 8.) then the issue of Richard and Anne Stiles, the parents of his paternal grandfather’s father: (No. 9) and so on in the paternal grandfather’s paternal line, or blood of Walter Stiles, in infinitum. In defect of these, the issue of William and Jane Smith, the parents of his paternal grandfather’s mother: (No. 10.) and so on in the paternal grandfather’s maternal line, or blood of Christian Smith, in infinitum; till both the immediate bloods of George Stiles, the paternal grandfather, are spent. Then we must resort to the issue of Luke and Frances Kempe, the parents of John Stiles’s paternal grandmother: (No. 11.) then to the issue of Thomas and Sarah Kempe, the parents of his paternal grandmother’s father: (No. 12.) and so on in the paternal grandmother paternal line, or blood of Luke Kempe, in infinitum. In default of which, we must call in the issue of Charles and Mary Holland, the parents of his paternal grandmother’s mother: (No. 13) and so no in the paternal grandmother’s maternal line, or blood of Frances Holland, in infinitum; till both the immediate bloods of Cecilia Kempe, the paternal grandmother, are also spent, Whereby the paternal blood of John Stiles entirely failing, recourse must then, and not before, be had to his maternal relations; or the blood of the Bakers, (No. 14, 15, 16.) Willis’s, (No. 17.) Thorpes, (No. 18, 19.) and Whites; (No. 20.) in the same regular successive order as in the paternal line.
The student should however be informed, that the class, No. 10, would be postponed to No. 11, in consequence of the doctrine laid down, arguendo [for argument’s sake], by justice Manwoode, in the case of Clere and Brooke;90 from whence it is adopted by lord Bacon,91 and Sir Matthew Hale.92 And yet, notwithstanding these respectable authorities, the compiler of this table has ventured to give the preference therein to No. 10 before No. 11; for the following reasons: 1. Because this point was not the principal question in the case of Clere and Brooke; but the law concerning it is delivered obiter [hastily] only, and in the course of argument, by justice Manwoode; though afterwards said to be confirmed by the three other justices in separate, extrajudicial, conferences with the reporter. 2. Because the chief-justice, Sir James Dyer, in reporting the resolution of the court in what seems to be the same case,93 takes no notice of this doctrine. 3. Because it appears, from Plowden’s report, that very many gentlemen of the law were dissatisfied with this position of justice Manwoode. 4. Because the position itself destroys the otherwise entire and regular symmetry of our legal course of descents, as is manifest by inspecting the table; and destroys also that constant preference of the male stocks in the law of inheritance, for which an additional reason is before given, besides the mere dignity of blood. 5. Because it introduces all that uncertainty and contradiction, which is pointed out by an ingenious author;94 and establishes a collateral doctrine, incompatible with the principal point resolved in the case of Clere and Brooke, viz. the preference of No. 11 to No. 14. And, though that learned writer proposes to rescind the principal point then resolved, in order to clear this difficulty; it is apprehended, that the difficulty may be better cleared, by rejecting the collateral doctrine, which was never yet resolved at all. 6. Because by the reason that is given for this doctrine, in Plowden, Bacon, and Hale, (viz. that in any degree, paramount the first, the law respects proximity, and not dignity of blood) No. 18 ought also to be preferred to No. 16; which is directly contrary to the eighth rule laid down by Hale himself.95 7. Because this position seems to contradict the allowed doctrine of Sir Edward Coke;96 who lays it down (under different names) that the blood of the Kempes (alias Sandies) shall not inherit till the blood of the Stiles’s (alias Fairfields) fail. Now the blood of the Stiles’s does certainly not fail, till both No. 9 and No. 10 are extinct. Wherefore No. 11 (being the blood of the Kempes) ought not to inherit till then. 8. Because in the case, Mich. 12 Edw. IV. 14.97 (much relied on in that of Clere and Brooke) it is laid down as a rule, that “cestuy, que doit inheriter al pere, doit inheriter al fits” [“he who is heir to the father is heir to the son”]. And so Sir Matthew Hale98 says, “that though the law excludes the father from inheriting, yet it substitutes and directs the descent, as it should have been, had the father inherited.” Now it is settled, by the resolution in Clere and Brooke, that No. 10 should have inherited to Geoffrey Stiles, the father, before No. 11; and therefore No. 10 ought also to be preferred in inheriting to John Stiles, the son.
In case John Stiles was not himself the purchaser, but the estate in fact came to him by descent from his father, mother, or any higher ancestor, there is this difference; that the blood of that line of ancestors, from which it did not descend, can never inherit. Thus, if it descended from Geoffrey Stiles, the father the blood of Lucy Baker, the mother, is perpetually excluded: and so, vice versa, if it descended from Lucy Baker, it cannot descend to the blood of Geoffrey Stiles. This, in either case, cuts off one half of the table from any possible succession. And farther, if it can be shown to have descended from George Stiles, this cuts off three fourths; for now the blood, not only of Lucy Baker, but also of Cecilia Kempe, is excluded. If, lastly, it descended from Walter Stiles, this narrows the succession still more, and cuts off seven eighths of the table; for now, neither the blood of Lucy Baker, nor of Cecilia Kempe, nor of Christian Smith, can ever succeed to the inheritance. And the like rule will hold upon descents from any other ancestors.
The student should bear in mind, that, during this whole process, John Stiles is the person supposed to have been last actually seized of the estate. For if ever it comes to vest in any other person, as heir to John Stiles, anew order of succession must be observed upon the death of such heir; since he, by his own seizin, now becomes himself an ancestor, or stipes, and must be put in the place of John Stiles. The figures therefore denote the order, in which the several classes would succeed to John Stiles, and not to each other: and, before we search for an heir in any of the higher figures, (as No. 8.) we must be first assured that all the lower classes (from No. 1 to 7.) were extinct, at John Stiles’s decease.
1. Co. Litt. 18.
2. See Vol. I. pag. 74, 75.Vol. II. Pag. 83, 85.
3. See pag. 112, etc.
4. A fuller explanation of the doctrine of consanguinity, and the consequences resulting from a right apprehension of its nature, fee an essay on collateral consanguinity, in the first volume of law tracts. Oxon. 1762. 80.
5. Ff. 38. 10. 10.
6. Decretal. l. 4. tit. 14.
7. Co. Litt. 23.
8. Ibid. 12.
9. This will seem surprising to those who are unacquainted with the increasing power of progressive numbers; but is palpably evident from the following table of a geometrical progression, in which the first term is 2, and the denominator also 2: or, to speak more intelligibly, it is evident, for that each of us has two ancestors in the first degree; the number of whom is doubled at every remove, because each of our ancestors has also two immediate ancestors of his own.
|Number of Ancestors.
|Number of Ancestors.
A shorter method of finding the number of ancestors at any even degree is by squaring the number of ancestors at half that number of degree. Thus 16 (the number so ancestors at four degrees) is the square of4,the number of ancestors at two; 256 is the square of 16; 65536 of 256; and the number of ancestors at 40 degrees would be the square of 1048576, or upwards of a million millions.
10. This will swell more considerably than the former calculation: or here, though the first term is but1,the denominator is4; that is, there is one kinsman (a brother) in the first degree, who makes, together with the propostus the two descendants from the first couple of ancestors; and in every other degree the number of kindred must be the quadruple of those in the degree which immediately precedes it. For, since each couple of ancestors has two descendants, who increase in a duplicate ratio, it will follow that the ratio, in which all the descendants increase downwards, must be double to that in which the ancestors increase upwards: but we have seen that the ancestors increase in a duplicate ratio: therefore the descend. Ants must increase in a double duplicate, that is, in a quadruple, ratio.
|Number of Kindred.
|Number of Kindred.
This calculation may also be formed by a more compendious process, viz. by squaring the couples, or half the number, of ancestors at any given degree; which will furnish us with the number of kindred we have in the same degree, at equal distance with ourselves from the common stock, besides those at unequal distances. Thus, in the tenth lineal degree, the number of ancestors is 1024; its half, or the couples, amount to 512; the number of kindred in the tenth collateral degree amounts therefore to 262144, or the square of 512. And if we will be at the trouble to recollect the state of the several families within our own knowledge, and observe how far they agree with this account; that is, whether, on an average, every man has not one brother or sister, four first cousins, sixteen second confines, and so on; we shall find that the present calculation is very far from being over-charged.
11. Decretal. 4. 14. 3 & 9.
12. Co. Litt. 23.
13. See the table of consanguinity annexed; wherein all the degrees of collateral kindred to the propositus are computed, so far as the tenth of the civilians and the seventh of the canonists inclusive; the former being distinguished by the numeral letters, the latter by the common ciphers.
14. Bro. tit. descent. 58.
15. Co. Litt. 15.
16. Ibid. 11.
17. Flet. l. 6. c. 2. § 2.
18. Litt. § 3.
19. Selden. De successe. Ebracor. C. 12.
20. Ff. 38. 15. 1. Nov. 118. 127.
21. Inst. 3. 3. 1.
22. Craig. De jur. Feud. l. 2. t. 13. § 15. Locke on gov. part. 1. § 90.
23. 2 Feud. 50.
24. Domat. P. 2. l. 2. t. 2. Montesqu. Esp.
25. LL. Hen. I. C 70.
26. l.7. c. 1.
27. 1 Feud. 20.
28. Descendit itaque jus, quasi ponderosum quid cadens deorsum recta linea, et nunquam reascendit. [Therefore the right descends, like a heavy weight falling downwards in a straight line, and never reascends.] l. 2. c. 29.
29. 1 Inst. 11.
30. Hal. H. C. L. 235.
31. Numb. C. 27.
32. Petit. LL. Attic. L.6. r. 6.
33. Inst. 3. 1. 6.
34. Stat. Wall. 12 Edw. I.
35. LL. Canut. c. 68.
36. tit. 7. § 1 & 4.
37. c. 70.
38. 1 Feud. 8.
39. Litt. § 5. Hale. H. C. L. 238.
40. Selden. De succ. Ebr. c. 5.
41. c. 70.
42. Glanvil. l. 7. c. 3.
43. Feud. 55.
44. Hale. H. C. I. 221.
45. l. 7. c. 3.
46. l. 1. § 3.
47. l. 2. co. 30, 31.
48. Somner. Gavelk. 7.
49. c. Litt. 165.
51. 1 Feud. i.
52. Hale. H. C. L. 236, 237.
53. Selden de succ. Ebr. c. 1.
54. Nov. 118. c.3.Inst. 3. 1. 6.
55. Mod. Un. Hist. xliii. 334.
56. l. 7. c. 3.
57. Hale. H. C. L. 217, 229.
58. Bracton. L. 2. c. 30. § 2.
59. Co. Litt. 12.
60. Gr. Coustum. 6. 25.
61. 1 Feud. 1. § 2.
62. Crag. L. 1. t. 9. § 36.
63. Domat. Part. 2. pr.
64. M. 12. Edw. IV. 14.
65. Abr. T. discent. 2.
66. Ibid. 38.
67. H. C. L. 243.
68. Tacitus de mor. Germ. 21.
69. Numb. C. 27.
70. Selden. de succ. Ebr. c. 12.
71. 1 Sid. 193. 1 Lev. 60. 12 Mod. 619.
72. Hale. H. C. L. 238.
73. Tenures. 186.
74. l. 2. t. 15. § 14.
75. Gr. Coustum. c. 25.
76. l. 2. c. 30. § 3.
77. l. 6. c. i. § 14.
78. de laud. LL. Angl. 5.
79. Plowd. 245. Co. Litt. 15.
80. 12 Will. III. C. 2.
81. Litt. § 14, 15.
82. See pag. 204.
83. Litt. § 4.
84. de succ. Ebracor. c. 12.
85. LL. Attic. l. 1. t. 6.
86. (Symbol). 606.
87. Nov. 118.
88. Gr. Coustum. c. 25.
89. See the table of descents annexed.
90. Plowd. 450.
91. Elem. c. 1.
92. H. C. L. 240, 244.
93. Dyer. 314.
94. Law of inheritances. 2d. edit. Pag. 30, 38, 61, 62, 66.
95. Hist. C. L. 247.
96. Co. Litt. 12. Hawk. Abr. In loc.
97. Fitzh. Abr. Tit. Discent. 2. Bro. Abr. T. discent. 3.
98. Hist. C. L. 243.