Selected quad for the lemma: law_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
law_n	write_v	year_n	young_a	122	3	6.4067	4	false

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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A44106	De successionibus apud anglos, or, A treatise of hereditary descents shewing the rise, progress and successive alterations thereof : and also the laws of descent as they are now in use.	Hale, Matthew, Sir, 1609-1676.; Shower, Bartholomew, Sir, 1658-1701.	1699 (1699)	Wing H236; ESTC R14823	19,580	116

part of the Father it resorted to the Line of the Mother and the nearer and worthier Blood was preferred so that if there were any of the part of the Father though never so far distant it hindered the descent to the Line of the Mother though much nearer There were in those times as it seems two Impediments of Descent or Hereditary Succession which now do not at all obtain 1. Leprosie if so adjudged by the Sentence of the Church this indeed I find not in Glanvil but I find it pleaded and allowed in the time of King Jolin and the Land adjudged to the Sister P. 4. Johannis 2. There was another curiosity and it is wonderful to see how much and how long it prevailed for we find it in use in Glanvil that wrote in King Hen. 2d's time in Bracton that wrote in Hen. 3d's time in Fleta that wrote in the time of Ed. 1. and in the broken year Ed. 1. Fitz. Avowry 235. Nemo potest esse Tenens Dominus Homagium repellit perquisitum And therefore if the eldest Brother had enfeoffed the second reserving Homage and had received Homage and then the second had died without Issue it should have descended to the youngest and not to the eldest Brother quia Homagium epellit perquisitum tee for this that I may mention it once for all Glan lib. 7. cap. 1. Bra. lib. 2. cap. 30. Fleta lib. 6. cap. 1. And so it has been for ought I can find ever since 3 Ed. 1. and indeed it is antiquated rather than altered and the Fancy upon which it is grounded hath appeared trivial for if the eldest Brother enfeoff the second reserving Homage the second dying without Issue it will Descend to the eldest as Heir and the Seignioury is extinct Indeed it might have been some 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 for this to exclude him from Succession I shall mention no more of this nor the former Impediment viz. Leprosie for they are both vanished and antiquated long since and neither the one nor the other is at this day any impediment of Descent And now passing over the time of King John and Richard the first because I find nothing of moment in that time relating to the Title in question unless the usurpation of King John upon his eldest Brothers Son which he would fain have justified by introducing a Law of preferring the younger Son before the Nephew descended from the eldest Brother But this pretention could no ways justifie his Usurpation as hath been shewn in the time of Henry the Second We have the Tractate of Bracton lib. 2. cap. 30 31. and lib. 5. The truth is there is so little variance as to the Points of Descents between the Law as it was taken when Bracton wrote and the Law as it was afterwards taken in Edward the first 's time when Britton and Fleta wrote that there is very little difference between them as may easily appear especially by comparing of Bract. ubi supra and Fleta Lib. 5. Chapter the 9th Liber the 6th Chapters the 1 st and 2d that the latter seems to be in effect an Abstract of the former therefore I shall set down what in substance both say and thereby it will appear that the Rules of Descents in the times of Henry the 3d and Edward the 1 st were very much one 1 st The Law seems settled now unquestionably that the eldest Son was in Common right Heir not only in cases of Knights Service Land but also of Soccage Lands unless there was a Special Custom to the contrary as in Kent and some other places and so that Point of the Common Law is fully settled 2ly That all the Descendants in infinitum from any Person that had been Heir if he had been living were Inheritable As the Descendants of the Son of the Brother of the Uncle c. 3ly 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 Glanvil's time was settled Glan lib. 7. cap. 3. Cum quis autem moriatur habens filium postnatum ex Primogenito filio praemorturo Nepotem magna quidem Juris dubitatio solet esse uter illorum praeferendus sit alij in illa Successione scilicet utrum Filius an nepos 4ly The Father or Grandfather could not by Law Inherit immediately his Son 5ly Leprosie though it were an exception to the Plaintiff because he ought not to converse in the Courts of Law yet we no where find that it was an Impediment of Descent So that upon the whole matter for any thing I can observe in them the Rules of Descent then stood settled in all Points as they are at this day except those few matters which yet in process of time soon settled as they now stand viz. 1. That Impediments of the hinderance of Descent from him that did Homage to him that received it seems to have yet been in use at least till the 3 Ed. 1. and in Fleta's time for he puts the case and admits it Whereas they both agree that Half-blood to him who is the Purchaser is an Impediment of the Descent yet in case of a Descent from a Common Ancestor Half-blood is no Impediment For instance A. hath Issue B. a Son and C. a Daughter by one venter and D. a Son by another venter if B. Purchase in Fee and die 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 the time of Bracton and Britton whether it should go to the younger Son or the Daughter but though it were then a doubt yet the Law hath since that time been settled that in both cases it descends to the Daughter Seseina sacit Stirpem primum gradum possessio fratris de feodo simplici facit sororem esse haeredem Upon the whole matter it seems that abating these small inconsiderable variances the States and Rules of Descents as they stood in the time of Henry the third or at least of Edward the first 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 Rules of Descents in Fee-simple as they stand at this day without medling with particular Limitations and Entails which vary the course of Descents in some cases from the Common Rules of Descents in Hereditary Succession and herein we shall see what the Law hath been and continued touching the same ever since Bracton who wrote in Henry the third's time now above Four hundred years since and by that we

shall see what alterations succession of time hath 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 hath stood settled here for above Four hundred years All possible Hereditary Succession may be distinguished into these three kinds 1 st Descending as from Father to Son or Daughter to Nephew or Niece 2ly Collateral as from Brother to Brother or Sister and Brothers Children 3ly Ascending either direct as from Son to Father or Grand-father which is not admitted by the Laws of England or in the Transversal Line as to the Uncle or Aunt Great Uncle or Great Aunt and because this Line again divides it self into the Line of the Father and Mother this Transversal ascending Succession is either in the Line of the Father Grandfather c. or in the Line of the Mother GrandMother c. the former are called Agnati the latter Cognati I shall therefore set down a Scheme of Pedigrees to explain the nature of Descents or Hereditary Successions Pedigree THis Pedigree with its Application will give a plain account of all Hereditary Succession under their several Cases and Limitations as will appear by these ensuing Rules take our Mark or Epocha from the Father 1 Rule In Descents the Law preferrs the Worthiest Blood and upon this Account 1 st In all Descents immediately the Male is preferred before the Female whether in Successions Descending Ascending or Collateral therefore the Son Inherits and Excludes the Daughter the Brother is preferred before the Sister the Uncle before the Aunt 2ly In all Descents immediate the Descendants from Males are preferred before the Descendants from Females and hence it is that the Daughter of the eldest Son is preferred in Descent from the Father before the Son of the youngest Son the Daughter of the eldest Brother or Uncle is preferred before the Son of the younger the Uncle nay the Great Uncle or Great Grand-fathers Brother shall Inherit before the Uncle of the Mothers side 2 Rule That in Descents the next of Blood is preferred before the Remote though equally worthy and upon this account 1 st The Sister of the whole Blood is preferred in Descents before the Brother of the half Blood because more strictly joyned to the Brother of the whole Blood viz. by the Father and Mother than the Brother though otherwise more worthy of the half Blood 2ly Because the Son or Daughter is nearer than the Brother the Brother or Sister than the Uncle the Son or Daughter shall Inherit before the Brother or Sister and they before the Uncle 3ly That yet the Father or Grand-father or Mother or Grand-mother in a direct ascending Line shall never succeed immediately the Son or Grand-child But the Fathers Brother shall be preferred before the Father and the Grand-fathers Brother shall be preferred before the Grand-father 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 upon this account the Father is at this day preferred in the Administration of his Sons Goods before his Sons Brother of the whole Blood and a Remainder limited Proximo de Sanguine shall vest in the Uncle 3 Rule That all the Descendants from such a Person as by the Law of England might have been Heir to another hold the same right by Representation as that Common Root from whom they are Descended And therefore 1 st They are in Law in the same Right of Proximity and Worthiness 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 Grand-child whether Son or Daughter of the eldest Son succeeds before the youngest Son The Son or Grand-child of the eldest Brother succeeds before the youngest Brother and so in all 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 next or Worthiest of Blood 2ly This Right transferred by Representation is infinite and unlimited in the Degrees of those that descend from the Representer the Filius the Nepos Pronepos Abnepos and so in infinitum enjoy the same Privilege of Representation as those from whom they derive their Pedigree as well in Descents Lineal as Transversal and therefore the Abnepos or Abneptis of the eldest Brother whether it be Son or Daughter shall be preferred before the youngest Brother because though 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 youngest 3ly And upon this account it is That if a Man hath two Daughters and the eldest die in the Life of the Father leaving six Daughters and then the Father dies the youngest Daughter shall have an equal share to all the rest because they stand in Representation of their Mother who should have had but a Moiety 4th Rule That by the Laws 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 the Daughters whether by the same or divers venters do Inherit together the Father and all the Sisters do Inherit the Brother by the same venter 5th Rule That the last actual Seizin in any Ancestor makes him as it were the Root of the Descent equal to many Intents as if he had been a Purchaser and therefore he that cannot according to the Rules of Descent derive his Succession to him who was last actually seized though he might have derived his Succession to 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 Father that was last actually seized And hence it is that though the Uncle is preferred before the Father in Descent to the Son yet if the Uncle enter after the Death of the Son and die without Issue the Father shall Inherit the Uncle Quia Seisina sacit Stirpem 6th Rule That whosoever derives a Title to any Land must be of the Blood of 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 his Father and if he hath none then to the Heirs of the part of his

preferring the Males before the Females and if none of the Fathers Line ad sobrinorum usque Filios then to descend to the Mothers Line Vide Petyt's Gloss in hanc Legem Among the Romans it appears that the Laws of Succession did successively vary for the Laws of the Twelve Tables excluded the Females from Inheriting and had many other straitnesses which were successively remedied by Claudius and after him by Hadrianus in Senatus-consulto Tertulliano and after him by Justinian in the third Book of his Institutes De Haereditatibus quoe ab intestato deferuntur and the two ensuing Titles And again all this further explained and setled by the Novel Constitutions of the same Justinian stiled Authenticoe Novelloe de Haereditatibus ab Intestato venientibus agnatorum jure 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 the Constitution the Roman Law stands setled therein The Descents or Successions from any Person are of three Kinds viz. 1. Descending 2. Ascending 3. Collateral viz. In Agnatos à Parte Patris in Cognatos à Parte Matris 1 st In the descending Line these Rules are directed 1. The descending Line whether Male or Female whether immediately or remote takes place and prevents the Descent or Succession Ascending or Collateral in infinitum 2. The remote Descendants of the Descending Line succeed in Stirpem That is to succeed into that right which his Parents should have had 3. That this Descent or Succession is equal in all the Descendants without preference of the Male before the Female So that if the Common Ancestor had three Sons and three Daughters each had a sixth part and if one died in the life of the Father having three Sons and three Daughters that sixth part that had belonged to the Person dead should have been equally divided between his or her six Children and so in infinitum in the Descending Line 2ly In the Ascending Line there are these Rules 1. If the Son die without Issue or any Descending from him leaving a Father and Mother both of them shall equally succeed to the Son and prevent all others of the Collateral Line Except Brothers and Sisters as shall be said or if only a Father or only a Mother he or she alone shall succeed 2ly But if the deceased had a Father Mother Brother and Sister ex utriusque parentibus conjuncti they shall all equally succeed the Son by equal parts without preference of the Male. 3. In the Collateral Line 1. If the Descendant die without Father Mother Son or Daughter or any Descending from them in the right Descending Line the Brothers and Sisters ex utriusque Parentibus conjuncti and the immediate Children of them shall succeed equally withoutpreference 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 utriusque Parentibus conjuncti nor any of their immediate Children then the Brothers and Sisters of the Half-blood and their immediate Children succeed in Stirpes to the deceased without any Prerogative to the Male. 3. But if there be no Brothers or Sisters of the whole or half-blood nor any of their immediate Children for their Grand-Children are not provided for by Law then the next Kindred are called to the Inheritance 4. But if the next be in 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 equally succeed in Capita and not in Stirpes Thus far of these settled Laws of the Jews Greeks and Romans But the particular or Municipal Laws and Customs of almost every Country derogate from these Laws and direct Successions in a much different way For instance By the Customs of Lombardy according to which the Rule of the Feuds both in their Descents and other things are much directed their Descents are in a much different manner Lib. 1. Feud Tit. 1. If a Feud be granted to one Brother who dies without Issue it Descends not to his Brother ' unless especially so provided 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 both to the Sons and Daughters The Brother also succeeds not to the Brother unless specially so provided ibid. Tit. 50. The Ascendants succeed not but only the Descendants neither doth a Daughter succeed nisi ex parte vel nisi sit Feudum foemininum If we come nearer home to the Normandy Laws there are two kind of Lands partable or not partable the Lands that are partable are all Vavasories Burgages and such like which are much of the nature of our Soccage Lands These descend to all the Sons or to all the Brothers Lands not partable are Fiefs and Dignities these descend to the eldest Son and not to all the Sons and if there be no Sons then to all the Daughters partable For want of Sons and Nephews it descends to the Daughters if no Sons or Daughters or Descendants from them it descends to the Brothers and for want of Brothers to the Sisters observing as before the difference between Lands partable and not partable and accordingly the Descent runs to the posterity of the Brothers unto the seventh Degree And if there be no Brothers or Sisters or any Descendants from them within the seventh Degree it descends to the Father and if the Father be dead to the Uncles and Aunts ut supra to Brothers and Sisters and if there be none then to the Grand-father So that according to their Law the Father is postpon'd to the Brother and Sister and their Issues but is preferred before the Uncle tho' by the Jewish Law the Father be preferred before the Brother by the Roman Law succeeds together with the Brother and by the English Law takes not immediately by descent but the Fathers Brother If Lands descend from the part of the Father they never Resort by Descent to the Line of the Mother but in cases of Purchases by the Son who dies without Issue for want of Heirs of the part of the Father it descends to the Heir of the part of the Mother according to the Law of England The Son of the eldest Son dying in the life of the Father is preferred before the younger Son surviving the Father as the Law stands here now but it hath some interruption 4. In an equality of degree in Collateral Descents the Male Line is preferred before the Female 5. Although by the Civil Law Fratres utriusque Parentis conjuncti praeseruntur fratribus consanguineis tantum vel uterinis yet it should

Mother because tho' the Son hath both the Blood of the Father and of the Mother in him yet he is of the Blood of the Mother and the Consanguinei of the Mother are Consanguinei cognati of the Son And of the other side if the Father had purchased the Land and it had descended to the Son and the Son had died without Issue without any Heir of the part of his Father it should never have descended in the Line of his Mother but escheated for though the Consanguinei of the Mother were Consanguinei to 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 Mothers Consanguinity is of the Blood of the Son And consequently also if the Grandfather had purchased Lands and it had descended from him to the Father and from him to the Son if the Son had entered and died without Issue his Fathers Brothers or Sisters or their Descendants or for want of them his Grandfathers Brothers or Sisters or their Descendants or for want of them his great Grandfathers Brothers or Sisters or their Descendants or for want of them his great Grandmothers Brothers or Sisters or their Descendants might have inherited for the Consanguinity of the great Grandmother was of the Consanguinity of the Grandfather but none of the Line of the Mother or Grandmother viz. the Grandfathers Wife should have inherited for that they were not of the Blood of the first Purchaser And the same Rule è converso holds in Purchases in the Line of the Mother or Grandmother they shall always keep in the same Line wherein the first Purchaser settled them But it is not necessary that he that inherits be always Heir to the Purchaser but it sufficeth if he be of his Blood and Heir to him who was last seised The Father purchaseth Lands and it Descends to his Son who dies without Issue it shall never descend to the Heir of the part of the Sons Mother But if the Sons Grandmother hath a Brother and the Sons great Grandmother hath a Brother and there is no other Kindred it shall descend to the Grandmothers Brother and yet if the Father had died without Issue his Grandmothers Brother should have been preferred before his Mothers Brother because the former was Heir of the part of his Father though by a Female and the latter was Heir of the part of his Mother But where the Son is once seised and dies without Issue his Grandmothers Brother is to him Heir of the part of his Father and being nearer than his great Grandmothers Brother is preferred in Descent But this is always intended so long as the Line of the Descent is not broken for if the Son alien those Lands and then repurchase them again in Fee Now the Rules of Descent hold as if he had been the original Purchaser and that it had never been in the Line of the Father or Mother 7th Rule In Succession as well in the Line Descending Transversal or Ascending the Line that is first derived from a Male Root hath always the preference A. hath Issue two Sons B. and C. B. hath Issue a Son and a Daughter D. and E. D. the Son hath Issue a Daughter F. and E. the Daughter hath Issue a Son G. ● nor any of his Descendants shall not inherit so long as there are any Descendants from D. and E. and E. the Daughter nor none of her Descendants shall inherit so long as there are Descendants from D. the Son whether they be Male or Female In Descents Collateral as Brothers and Sisters the same Instance applied evideceth the conclusion But in Successions in the Line Ascending there must be a fuller explanation because it is darker and more obscure I shall therefore set forth the whole Method of Transversal Ascending Descents in these ensuing Rules 1 st Rule If the Son purchaseth Lands in Fee-simple and dies without Issue those of the Male Line Ascending usque in infinitum shall be preferred in the Descent according to their Proximity of Degree to the Son Therefore the Fathers Brothers or Sisters or their Descendants shall be preferred before the Brothers of the Grandfather and their Descendants And again if the Father had no Brothers nor Sisters the Grandfathers Brothers and their Descendants and for want of Brothers the Grandfathers Sisters and their Descendants should be preferred before the Brothers of the great Grandfather For although by the Law of England the Father nor Grandfather cannot immediately inherit the Son yet the direction of the Descent to the Collateral Line ascending is as much as if the Father or Grandfather had been by Law inheritable and therefore as in case the Father had been inheritable he should have inherited 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 his Sisters and their Descendants should inherit before his Uncles or the Grandfathers Brothers and their Descendants so though the Law of England exclude the Father from inheriting it substitutes and directs the Descent as it should have been if the Father had inherited viz. Le ts in those first that are in the next Degree to him 2d Rule is this That the Line of the part of the Mother shall never inherit as long as there are any though never so remote of the Line of the part of the Father and therefore though the Mother hath a Brother yet if the Atavus or Atavia of the Father hath a Brother or Sister He and She shall be preferred and exclude the Mothers Brother though he is much nearer 3d Rule But yet farther The Male Line of the part of the Father descending shall in oeternum exclude the Female Line of the part of the Father ascending and therefore in the case proposed the Son purchasing Lands and dying without Issue the Sister of the Father Grandfather or great Grandfather and so in infinitum shall be preferred before the Fathers Mothers Brother though the Fathers Mothers Brother be a Male and the Fathers Grandfathers Sister be a Female and more remote because it is in the Male Line which is more worthy than the Female Line though even the Female Line be of the Blood of the Father 4th Rule But as in the Male Line ascending the more near is preferred in the Descent before the remote so in the Female Line descending so it be of the Blood of the Father the more near is preferred before the remote The Son therefore purchaseth Lands and dies without Issue the Father Grandfather and great Grandfather and so upward all the Male Line are dead without Brother or