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
and sometimes Foreign Service and sometimes Servicium Loricae And hence it came to pass that not only according to the Custom of Normandy but also according to the Custom of other Countries These Honorary Fees or Infeudations became descendable to the eldest and not to all the Males And hence it is That in Kent where the Custom of Descent to all the Males generally prevails They pretend a concession of all their Customs by the Conqueror to obtain their Submission to his Government according to the Romantick Story of their moving Wood. Yet even in Kent it self these ancient Tenures or Fees that are anciently held by Knights Service are descendable to the eldest Son as Mr. Lambard hath observed to my hand in pag. 553. out of the 9th of H. 3 Fitz Tit. Prescription 63 26 H. 8.5 and the Statute of 31 H. 8. cap. 3. But yet even in Kent it self If Gavelkind Land Escheat or come to the Crown by Attainder or Dissolution of Monasteries and be granted to be held in Knights Service or per Baroniam the Customary Descent is not changed neither can be but by Act of Parliament for it is a Custom fixed to the Land But those Honorary Fees made in ancient times so shortly after the Conquest did silently and suddainly assume the Rule of Descent to the eldest and accordingly held it and so although possibly there were no Act of Parliament of those elder times that altered the ancient course of Descents from all the Sons to the eldest or at least none that we know of yet the use of the Neighbour Country might introduce the same Usage here as to these Honorary Possessions And because these Honorary Inseudations were many and scattered almost through all the Kingdom in a little time they introduced a a parity in the Succession of Lands of other Tenures as Soccage or Vavasories So that without question by little and little almost generally in all Counties of England except Kent who were most Tenacious of their own Customs in which they gloried and some particular Fees and Places where a contrary Usage prevailed the generality of Descents or Successions by little and little as well of Soccage Lands as of Knights Service went to the eldest Son according to the Declaration of King Edward the first in the Statute of Wales abovementioned as will more fully appear by what follows In the time of H. 1. Lambard fol. 203. we find in his 70th Law that it should seem that the whole Land did not yet descend to the eldest Son but began a little to look that way Primum patris Feudum primogenitus filius habeat As to Collateral Descents the Law determined thus Lambard ut supra Siquis sine liberis decesserit Pater out mater ejus in Haereditatem succedat vel frater vel soror si pater mater desint si nec hos hà beat soror Patris vel Matris deinceps in quintum geniculum qui cum propinquiores in parentela fiunt Haereditario jure succedant dum virilis Sexus extiterit Haereditas abinde fit foeminina non Haereditetur By this it seems 1. The eldest Son though he had Jus Primogeniturae the principal Fee of his Father yet he carried not all the Land 2. That for want of Children the Father or Mother inherited before the Brother or Sister 3. That for want of Children Father Mother Brothers and Sisters the Lands decended to the Uncles and Aunts to the Fifth Degree 4. That in Succession Collateral Proximity of Kindred was preferred 5. That the Male was preferred before the Female That is the Father's Line was preferred before the Mothers unless the Land descended from the Mother and then the Mothers Line was to be preferred How this Law was observed in the Intervals between Henry the first and Henry the second we can give no account But the next period that we come to is Henry the 2d Glanvil in his seventh Book gives us some account how the Law stood in his time wherein notwithstanding it will appear there was some incertainty in the business of Descents or Hereditary Successions though it was much better polited than formerly The Rules then of Succession were either in reference to Goods or Lands As to Goods one third part went to the Wife another third part to the Children the other third part to the Testator's disposal But if he had no Wife a Moiety went to the Children the other Moiety to his disposal Glan lib. 7. c. 5. But as to the Succession of Lands the Rules were these 1 st If the Lands were Knights Service they generally went to the eldest Son and in case of no Son to all the Daughters and in case of no Children to the eldest Brother 2ly If the Lands were Socage it descended to all the Sons Si fuerit Socagium id antiquitus divisum only the chief House was to be allotted to the Pourparty of the eldest and a Compensation made to the rest in lieu thereof Si vero non fuerit antiquitus Divisum tunc Primogenitus secundum quorundam consuetudinem totam Haereditatem obtinebit secundum autem quorundam consuetudinem postnatus silius Haeres est Glanvil lib. 7. cap. 3. So that although Custom directed variously the Descent either to the eldest youngest or all the Sons Yet it seems at this time Jus commune or Common right spoke for the eldest Son to be Heir no Custom intervening 3ly As the Son or Daughter so their Children in infinitum are preferred in the Descent before the Collateral Line or Uncles 4ly But if a Man have two Sons and the eldest dies in the life time of the Father having a Son or Daughter and then the Father dies it was then controverted whether the Son or the Nephew should succeed the Father though the better Opinion seemed to be for the Nephew Ibid. cap. 3. 5ly A Bastard could not Inherit ibid. cap. 13 And although by the Common and Civil Law If A. hath a Son born of B. before Marriage and after A. Marries B. this Son be Legitimate and Hereditable Yet according to the Law of England then used as well as after he was not Hereditable Glan lib. 7. cap. 15. 6ly In case the Purchaser die without Issue the Lands descended to the Brother and for want of Brothers to the Sisters and for want of them to the Children of the Brothers or Sisters and for want of them to the Uncles and so onwards according to the Rules of Descents at this day and the Father and Mother were not immediately to Inherit the Son but the Brothers or Uncles and their Children Glan lib. 7. cap. 4. And it seems that in all things else the Rule of Descent in reference to the Collateral Line held much the same as now As namely If Land descended of the part of the Father it should not resort to the part of the Mother è converso But in case of Purchase for want of Heirs of the
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
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
Sister or any descending from them but the Fathers Mother hath a Sister or Brother and also the Father's Grandmother hath a Brother and likewise the Fathers great Grand-mother hath a Brother it is true all these are of the Blood of the Father and the very remotest of these shall exclude the Sons Mothers Brother and it is likewise true that the great Grand-mothers Blood hath passed through more Males of the Fathers Blood than the Blood of the Grand-mother or Mother of the Father but in this case the Fathers Mothers Sister shall be preferred before the Fathers Grand-mothers Brother or great Grand-mothers Brother because they are all in the Female Line viz. Cognati and the Fathers Mothers Sister is the nearest and therefore shall have the preference as well as in the Male Line ascending the Fathers Brother or Sister shall be preferred before the Grand-Fathers Brother 5th Rule And yet in the last case where the Son purchaseth Lands and dies without Issue and without Heir of the part of his Grand-father the Land should bescend to his Grand-mothers Brother or Sister as Heir of the part of the Father yet if the Father had purchased this Land and died and it descended to his Son who died without Issue the Lands should not have descended to his Fathers Mothers Brother or Sister for the Reason given in the eighth Rule but for want of Brothers or Sisters of the Grand-father great Grand-father and so upward in the Male ascending Line it should descend to the Fathers Grand-mothers Brother or Sister which is Heir of the part of the Father who should be preferred before the Fathers Mothers Brother which was in truth the Heir of the part of the Mother of the purchaser though the next Heir of the part of the Father of him that last died seized And therefore as if the Father who was the 02 purchaser had died without Issue the Heirs of the part of his Father whether of the Male or Female Line should have been preferred before the Heir of the part of the Mother so the Son that stands now in the place of his Father and inherits to him primarily in his Fathers Line dying without Issue the same Devolution and Hereditary Succession should have been as if his Father had immediately died without Issue which should have been to his Grandmothers Brother as Heir of the part of the Father though by the Female Line and not to his Mothers Brother which was only Heir of the part of his Mother and not to take till his Fathers Fine as well Female as Male was spent 6th Rule If the Son purchase Lands and dies without Issue and it descends to any Heir of the part of the Father and then the Line of the Father after Entry and Possession fail it shall never resort to the Line of the Mother tho' in the first Instance or first Descent from the Son it might have descended to the Heir of the part of the Mother For now by this Descent and Seisin it is lodged in the Fathers Line to whom the Heir of the part of the Mother can never derive a Title as Heir but it shall rather Escheat But if the Heir of the part of the Father had not entered but then that Line had failed it might have descended to the Heir of the part of the Mother as Heir to the Son to whom immediately for want of Heirs of the part of the Father it might have descended 7th Rule And upon the same Reason if it had once descended to the Heir of the part of the Father of the Grand-fathers Line and that Heir had entered it should never descend to the Heir of the part of the Father of the Grand-mothers Line because the Line of the Grand-mother was not of Blood or Consanguinity to the Line of the Grandfathers side 8th Rule If for default of Heirs of the purchaser of the part of the Father the Lands Descend to the Line of the Mother the Heirs of the Mother on the part of her Fathers Side shall be preferred in Succession before her Heirs of the part of her Mothers side because they are the more worthy A great part of these differences are easily to be collected out of the Resolutions in the case of Clare versus Brooke alias Cobham And thus the Law stands in point of Descents or Hereditary Succession in England at this Day and for above Four hundred years past FINIS A Scheme of Pedigrees And also The Degrees of Parentage and ConsanguÃnity Adgnati ex parts Patris Cousins on the part of the Father the more worthy in Descents tho' farther remote RECTA LINEA THE RIGHT LINE Cognati ex parte Matris Cousins on the part of the Mother the less worthy in Descents tho' nearer of Kin. Linea transversalis seu collateralis The Side Line Linea transver salis seu collateralis The Side Line  Abpatruus magnus The great Uncles Grand-Father on the Fathers side Tritavus The great Grand-Fathers great Grand-Father 6 Tritavia The great Grand-Fathers great Grand-Mother Abavunculus The great Uncles Grand-Father on the Mothers side  Abamita magna The great Uncles Grand-Mother on the Fathers side Attavus The great Grand-Fathers Grand-Father 5 Attavia The great Grand-Fathers Grand-Mother Abmatertera magna The great Uncles Grand-Mother on the Mothers side Propatruus magnus The great Uncles Father on the Fathers side Abavus The great Grand-Fathers Father 4 Abavia The great Grand-Fathers Mother Proavunculus magnus The great Uncles Father on the Mothers side Proamita magna The great Uncles Mother on the Fathers side Proavus The great Grand-Father 3 Proavia The great Grand-Mother Promatertera magna The great Uncles Mother on the Mothers side Patruus magnus The great Uncle on the Fathers side Avus The Grand-Father 2 Avia The Grand-Mother Avunculus magnus The great Uncle on the Mothers side Amita magna The great Aunt on the Fathers side Pater Father 1 Mater Mother Matertera magna The great Aunt on the Mothers side Patruus The Uncle or Fathers Brothers Linea recta ascendens Amita The Aunt or Fathers Sister The Right Line ascending Matertera The Aunt or Mothers Sister Frater A Brother Propositus Linea recta descendent The Right Line descending Frater A Brother Semi Germanus Frater Brother of one Father and several Mothers Uterinus Frater Brother of one Mother and several Fathers Soror Sister Soror Sister Soror Sister Patrueles à Patruo Sons or Daughters Cousin Germans on the Fathers side Filius Son 1 Filia Daughter Avunculini ab Avunculo Sons or Daughters Cousin Germans on the Mothers side   Amitini ab Amita Sons or Daughters Cousin Germans on the Fathers side Nepos linealis The lineal Nephew 2 Neptis linealis The lineal Neece Materterini à matertera Sons or Daughters Cousin Germans on the Mothers side  Pronepos linealis The lineal Nephew or Neeces Son 3 Proneptis linealis The lineal Nephew or Neeces Daughter  Horum Of these Filius The Son Filia The Daughter right Cousin Germans Abnepos linealis The Grand-Son of the lineal Nephew or Neece 4 Abneptis linealis The Grand-Daughter of the lineal Nephew or Neece Horum Of these Filius The Son Filia The Daughter right Cousin Germans Eorum Of these Nepos collateralis The collateral Nephew Neptis collateralis The collaral Niece Atnepos linealis The great Grand-Son of the lineal Nephew or Neece 5 Atneptis linealis The great Grand-Daughter of the lineal Nephew or Neece Eorum Of these Nepos collateralis The collateral Nephew Neptis collateralis The collateral Neece  Eorundem Of these Pronepos collateralis The collateral Nephews Son Proneptis collateralis The collateral Nephews Daughter Trinepos linealis The great Great Grand-Son of the lineal Nephew or Neece 6 Trineptis linealis The great Great Grand-Daughter of the lineal Nephew or Neece Eorundem Of these Pronepos collateralis The collateral Nephews Son Proneptis collateralis The collateral Nephews Daughter Et sic in infinitum Et sic infinitum  Et sic in infinitum Et sic in infinitum Adgnati quasi 〈◊〉 Patre congeniti Cognati 〈…〉 parte 〈◊〉 〈…〉 Patre an 〈◊〉 〈◊〉 quasi 〈…〉 Avunculus The Uncle or Mothers Brother Avunculus quasi 〈◊〉 minor Amita quasi à 〈◊〉 tertia Matertera quasi Mâ—â—ltera Frater quasi 〈◊〉 alter Semi Germani fratres quasi ex 〈◊〉 Patre separalibus Maâ—â—ribus nati 〈◊〉 quasi 〈◊〉 orta â—liversa Uterini 〈…〉 utero Fraâ—tes 〈◊〉 separalibus Patribus â—â—lius Filia 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i.e. ab amore â—arantum Nepos quasi 〈◊〉 post
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 LONDON Printed and are to be Sold by A. Baldwin in Warwick-lane 1699. TO Sir S. E. Knight THIS TREATISE IS Most Humbly Dedicated BY HIS Most Obliged and most Obedient Servant B. S. TO THE READER THis little Treatise of Hereditary Descents being recommended to my perusal I willingly embraced the opportunity of shewing my esteem of the great Learning of the Author and my Love for the Publick in sending it abroad And I was the I am unwilling to detain you any longer than only to tell you that tho' in this Treatise there is nothing but what most Practicers do know already yet the Method I beleive will render it useful in some sort to those of the greatest Learning B. S. DE Successionibus APUD ANGLOS MY design in the following Discourse is to Treat of the Hereditary Transmission of Lands from Ancestor to Heir and the certainty thereof and what growth this Doctrine has had in Succession of time till it arrived to the State and Prefection which now it hath And touching Hereditary Transmission or Succession commonly with us called Descents I shall hold this Order in my Discourse viz. 1 st To give some account touching the Ancient Laws both Jewish Greek and Roman concerning this matter 2ly To observe some things wherein it may appear how the particular Customs or Municipal Laws of other Countries varied from those other Laws 3ly To give some account of the Rules and Laws of Descents or Hereditary Transmissions as they stood and at this day stand in England with the successive alterations that process of time and the wisdom of our Ancestors and Customs grown up tacitely gradually and successively have made therein And first touching the Succession or Descent of Inheritance as also of Goods among the Jews Mr. Selden in his Book De Successionibus apud Hebraeos hath given us an excellent account as well out of the holy Text as out of the Comments of Rabbins or Jewish Lawyers which I briefly comprise in the 5 6 7 12 and 13 Chapters of that Book the sum whereof for so much as concerns my purpose is this 1. That in the descending Line the Descent or Succession was unto all the Sons only the eldest had a double Portion viz. If there were three Sons the eldest had two fourths and each other Son one fourth part 2. The Nephew or Son of the Son dying in the Fathers Life and so in infinitum succeeded in the partition of his Father as if his Father had been in Possession of it 3. The Daughter did not succeed in the Inheritance of the Father as long as there was Sons or Descendants from the. But if one Son had died in the life of his Father having Daughters and without Sons his Daughters succeeded in his part as if he had been Possessed 4. In case there were no Sons but Daughters the Daughters equally succeeded their Father without any prelation of the eldest to two parts or a double Portion 5. But if the Son had an Inheritance and died without Issue having a Father and Brothers the Inheritance of the Son descended not to his Brothers unless in case of the next Brother taking to Wife the deceased's Wife to raise Children for the Brother deceased but in such case the Father inherited his Son entirely 6. But if the Father were dead it came to the Brothers as it were as Heirs to the Father in the same manner as if the Inheritance had been actually possessed by him and therefore the Fathers other Sons and their Descendants in infinitum succeeded but yet equally and without any double Portion to the eldest because though in truth the Brothers succeeded as it were in Right of Representation from the Father yet the Father dying before his Son the Descent was de facto immediately from the Brother to the Brother where the Law gave not a double Portion and in case the Father had no Sons or Descendants from them then it descended to all the Sisters 7. If the Son died without Issue and his Father or any Descendants from him were extant it went not to the Grandfather or his other Descendants But if the Father were dead without Issue it descended to the Grandfather and if he were dead then to his Sons and their Descendants and for want of them then to his Daughters or their Descendants as if the Grandfather himself had been actually possessed and had died And so mutatis mutandis to the Proavus Abavus Atavus c. But the Inheritance of the Son never retorted to the Mother or to any of her Ancestors but she and they were totally excluded 8. The double Portion that was therefore jus primogenituroe never took place but in that person that was the Primogenitus of him from whom the Inheritance immediately descended or in him that represented him If A. had two Sons B. and C. and B. the eldest had two Sons D. and E. and died B. should have had a double Portion viz. two thirds and C. only one third And if B. had died in the life time of A. and then A. died D. and E. should have had the two thirds or double Portion which had belonged to B. if he had survived his Father and this double Portion should have been divided between D. and E. thus viz. D. should have had two thirds of the two thirds that came to them and E. the other third part thereof Among the Graecians the Laws of Descents in some sort resembled those of the Jews In some things they differed Vide Petyts Leges Atticae Tit. 6. De Testamentis Haereditario Jure where the Text of their Law runs thus Omnes Legitimi Filii Haereditatem Paternam ex aequo inter se Haeriscunto Siquis intestatus moritur relictis filiabus qui eas in Vxores ducent Haeredes sunto Si nullae supersint hi ab intestato haereditatem cernunto Et primo quidem Fratres defuncti Germani Legitimi Fratrum Filii hoereditatem simul adeunto Si nulli Fratres aut Fratrum Filii supersint iis geniti eadem Lege haereditatem cernunto Masculi autem iis geniti etiamsi remotiori cognationis sint gradu proeferuntor Si nulli supersint Paterni proximi ad sobrinorum usque Filios materni defuncti propinqui simili Lege Haereditatem adeunto Si è neutra cognatione supersint intra definitum gradum proprior cognatus paternus adito Notho Nothaeve Superstite legitima Filia Nothus hoereditatem Patris ne adito This Law is very obscure but the Sence seems to be briefly this That all the Sons equally inherit the Father but if he have no Sons then the Husbands of the Daughters if he have no Children then his Brothers and his Brothers Children and if none then his next Kindred of the part of his Father
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