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Chapter the fourteenth.
Of TITLE by         DESCENT.
The feveral gradations and ftages, requifite to form a complete title to lands, tenements, and hereditaments, having been briefly ftated in the preceding chapter, we are next to confider the feveral manners, in which this complete title (and therein principally the right of propriety) may be reciprocally loft and acquired : whereby the dominion of things real is either continued, or transferred from one man to another. And here we muft firft of all obferve, that (as gain and lofs are terms of relation, and of a reciprocal nature) by whatever method one man gains an eftate, by that fame method or it's correlative fome other man has loft it. As where the heir acquires by defcent, the anceftor has firft loft or abandoned the eftate by his death : where the lord gains land by efcheat, the eftate of the tenant is firft of all loft by the natural or legal extinction of all his hereditary blood : where a man gains an intereft by occupancy, the former owner has previoufly relinquifhed his right of poffeffion : where one man claims by prefcription or immemorial ufage, another man has either parted with his right by an antient and now forgotten grant, or has forfeited it by the fupinenefs or neglect of himfelf and his anceftors for ages : and fo, in café of forfeiture, the tenant by his own mifbehaviour or neglect has renounced his intereft in the eftate ; whereupon it devolves to that perfon who by law may take advantage of fuch default : and, in alienation by common affurances, the two confiderations of lofs and acquifition are fo
interwoven,
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interwove, and fo conftantly 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 lofing on the other, a title to eftates in things real, are reduced by our law to two : defcent, where the title is vefted in a man by the fingle operation of law ; and purchafe, where the title is vefted in him by his own act or agreement ^a.
Descent, or hereditary fucceffion, is the title whereby a man on the death of his anceftor acquires his eftate by right of reprefentation, as his heir at law. An heir therefore is he upon whom the law cafts the eftate immediately on the death of the anceftor : and an eftate, fo defcending to the heir, is in law called the inheritance.
The doctrine of defcents, or law of inheritances in fee-fimple, is a point of the higheft importance ; and is indeed the principal object of the laws of real property in England. All the rules relating to purchafes, whereby the legal courfe ofdefcents in broken and altered, perpetually refer to this fettled law of inheritance, as a datum or firft principle univerfally known, and upon which their fubfequent 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 underftood without a previous knowledge of the law of defcents in fee-fimple. One may well perceive, that this in an eftate confined in it's defcent to fuch heirs only of the donee, as have fprung or fhall fpring from his body ; but who thofe heirs are, whether all his children both male and female, or the male only, and (among the males) whether the eldeft, youngeft, or other fon alone, or all the fons together, fhall be his heir ; this is a point, that we muft refult back to the ftanding law of defcents in fee-fimple to be informed of.
.{FS}
^aCo. Litt. 18.
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In order therefore to treat a matter of this univerfal confequence the more clearly, I fhall endeavour to lay afide fuch matters as will only tend to breed embaraffment and confufion in our enquiries, and fhall confine myfelf entirely to this one object. I fhall therefore decline confidering at prefent who are, and who are not, capable of being heirs ; referving that for the chapter of efcheats. I fhall alfo pafs over the frequent divifion of defcents, into thofe by cuftom, ftatute, and common law : for defcents by particular cuftom, ftatute, and common law : for defcents by particular cuftom, as to all the fons in gavelkind, and to the youngeft in borough-englifh, have already been often ^b hinted at, and may alfo be incidentally touched upon again ; but will not make a feparate confideration by themfelves, in a fyftem fo general as the prefent : and defcents by ftatute, or fee-tail per formam doni, in purfuance of the ftatute of Weftminfter the fecond, have alfo been already ^c copioufly handled ; and it has been feen that the defcent in tail is reftrained and regulated according to the words of the original donation, and does not intirely purfue the common law doctrine of inheritance ; which, and which only, it will now be our bufinefs to explain.
And, as this depends not a little on the nature of kindred, and the feveral degrees of confanguinity, it will be previoufly neceffary fo ftate, as briefly as poffible, the true notion of this kindred or alliance in blood ^d.
Consanguinity, or kindred, is defined by the writers on thefe fubjects to be “vinculum perfonarum ab eodem ftipite defcen- “dentium ;” the connexion or relation of perfons defcended from the fame ftock or common anceftor. This confanguinity is either lineal, or collateral.
.{FS}
^bSee Vol. I. pag. 74, 75.Vol. II. Pag. 83, 85.
^cSee pag. 112, &c.

1. a fuller explanation of the doctrine of confanguinity, and the confequences refulting from a right apprehenfion of it's nature, fee an effay on collateral confanguinity, in the firft volume of law tracts. Oxon. 1762. 80.
   

.{FE}
Lineal
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Lineal confanguinity is that which fubfifts between perfons, of whom one is defcended in a direct line from the other : as between John Stiles (the propofitus in the table of confanguinity) and his father, grandfather, great-grandfather, and fo upwards in the direct afcending line ; or between John Stiles is related to him in the firft degree, and fo likewife is his fon ; his grandfire and grandfon in the fecond ; his great-grandfire, and great-grandfon in the third. This is the only natural way of reckoning the degrees in the direct line, and therefore univerfally obtains, as well in the civil ^e, and canon ^f, as in the common law ^g.
The doctrine of lineal confanguinity is fufficiently plain and obvious ; but it is at the firft view aftonifhing to confider the number of lineal anceftors which every man has, within no very great number of degrees : and fo many different bloods ^h is a man faid to contain in his veins, as he hath lineal anceftors. Of thefe he hath two in the firft afcending degree, his own parents ; he hath four in the fecond, the parents of his father and the parents of his mother ; he hath eight in the third, the parents of his two grandfathers and two grandmothers ; and, by the fame rule of progreffion, he hath an hundred and twenty eight in the feventh ; a thoufand and twenty four in the tenth ; and at the twentieth degree, or the diftance of twenty generations, every man hath above a million of anceftors, as common arithmetic will demonftrate ⁱ. This lineal confanguinity, we may obferve, falls ftrictly within the definition of vincululm perfonarum ab eodem ftipite def-
.{FS}
^eFf. 38. 10. 10.
^FDecretal. l. 4. tit. 14.
^gCo. Litt. 23.
^hIbid. 12.
ⁱThis will feem furprizing to thofe who are unacquainted with the encreafing power of progreffive numbers ; but is palpably evident from the following table of a geometrical progreffion, in which the firft term is 2, and the denominator alfo 2 : or, to
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Bb2

fpeak

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cendentium ; fince lineal relations are fuch as defcend one from the other, and both of courfe from the fame common anceftor.
Collateral kindred anfwers to the fame defcription : collateral relations agreeing with the lineal in this, that they defcend from the fame ftock or anceftor ; but differing in this, that they do not defcend from each other. Collateral kinfmen as fuch then as lineally fpring from one and the fame anceftor, who is the ftirps, or root, the ftipes, trunk, or common ftock, from whence thefe relations are branched out. As if John Stiles hath
.{FS}
fpeak more intelligibly, it is evident, for that each of us has two anceftors in the firft degree ; the number of whom is doubled at every remove, becaufe each of our anceftors has alfo two immediate anceftors of his own.

Lineal Degrees.

Number of Anceftors.

1........................................................................................................... 2
2........................................................................................................... 4
3........................................................................................................... 8
4........................................................................................................... 16
5........................................................................................................... 32
6........................................................................................................... 64
7........................................................................................................... 128
8........................................................................................................... 256
9........................................................................................................... 512
10....................................................................................................... 1024
11....................................................................................................... 2048
12....................................................................................................... 4096
13....................................................................................................... 8192
14....................................................................................................... 16384
15....................................................................................................... 32768
16....................................................................................................... 65536
17....................................................................................................... 131072
18....................................................................................................... 262144
19....................................................................................................... 524288
20....................................................................................................... 1048576
A fhorter method of finding the number of anceftors at any even degree is by fquaring the number of anceftors at half that number of degree. Thus 16 (the number fo anceftors at four degrees) is the fquare of4,the number of anceftors at two ; 256 is the fquare of 16 ; 65536 of 256 ; and the number of anceftors at 40 degrees would be the fquare of 1048576, or upwards of a million millions.
.{FE}
two
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two fons, who have each a numerous iffue ; both thefe iffues are lineally defcended from John Stiles as their common anceftor ; and they are collateral kinfmen to each other, becaufe they are all defcended from this common anceftor, and all have a portion of his blood in their veins, which denominates them confanguineos.
We muft be careful to remember, that the very being of collateral confanguinity confifts in this defcent from one and the fame common anceftor. Thus Titius and his brother are related ; why ? becaufe both defcend from the fame grandfather : and his fecond coufm's claim to confanguinity is this, that they both are derived from one and the fame great-grandfather. In fhort, as many anceftors as a man has, fo many common ftocks he has, from which collateral kinfmen may be derived. And as we are taught by holy writ, that there is one couple of anceftors belonging to us all, from whom the whole race of mankind is defcended, the obvious and undeniable confequence is, that all men are in fome degree related to each other. For indeed, if we only only fuppofed each couple of our anceftors to have left, one with another, two children ; and each of thofe children on an average to have left two more ; (and, without fuch a fuppofition, the human fpecies muft be daily diminifhing) we fhall find that all of us have now fubfifting near two hundred and feventy millions of kindred in the fifteenth degree, at the fame diftance from the feveral common anceftors as ourfelves are ; befides thofe that are one or two defcents nearer to or farther from the common ftock, who may amount to as many more ^k. And, if this calculation fhould appear incompatible with the number of inhabitants on the earth, it is becaufe, by intermarriages among the feveral defcendants from the fame anceftor, a hundred or a thoufand modes of confanguinity may be confolidated in one perfon, or he may be related to us a hundred or a thoufand different ways.
.{FS}
^kThis will fwell more confiderably than the former calculation : or here, though the firft term is but1,the denominator is4; that is, there is one kinfman (a brother) in the firft degree, who makes, together with the propoftus the two defcendants from the firft couple of anceftors ; and in every other degree the number of kindred muft
.{FE}
be
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The method of computing thefe degrees in the canon law ^l, which our law has adopted ^m, is as follows. We begin at the common anceftor, and reckon downwards ; and in whatfoever degree the two perfons, or the moft remote of them, is diftant
.{FS}
be the quadruple of thofe in the degree which immediately precedes it. For, fince each couple of anceftors has two defcendants, who encreafe in a duplicate ratio, it will follow that the ratio, in which all the defcendants encreafe downwards, muft be double to that in which the anceftors encreafe upwards : but we have feen that the anceftors encreafe in a duplicate ratio : therefore the defcend. Ants muft encreafe in a double duplicate, that is, in a quadruple, ratio.

Lineal Degrees.

Number of Anceftors.

1........................................................................................................... 1
2........................................................................................................... 4
3........................................................................................................... 16
4........................................................................................................... 64
5........................................................................................................... 256
6........................................................................................................... 1024
7........................................................................................................... 4096
8........................................................................................................... 16384
9........................................................................................................... 65536
10....................................................................................................... 262144
11....................................................................................................... 1048576
12....................................................................................................... 4194304
13....................................................................................................... 16777216
14....................................................................................................... 67108864
15....................................................................................................... 268435456
16....................................................................................................... 1073741824
17....................................................................................................... 4294967296
18....................................................................................................... 17179869184
19....................................................................................................... 68719476736
20....................................................................................................... 274877906944
This calculation may alfo be formed by a more compendious procefs, viz. by fquaring the couples, or half the number, of anceftors at any given degree ; which will furnifh us with the number of kindred we have in the fame degree, at equal diftance with ourfelves from the common ftock, befides thofe at unequal diftances. Thus, in the tenth lineal degree, the number of anceftors is 1024 ; it's half, or the couples, amount to 512 ; the number of kindred in the tenth collateral degree amounts therefore to 262144, or the fquare of 512. And if we will be at the trouble to recollect the ftate of the feveral families within our own knowledge, and obferve how far they agree with this account ; that is, whether, on an average, every man has not one brother or fifter, four firft coufins, fixteen fecond confines, and fo on ; we fhall find that the prefent calculation is very far from being over-charged.
^lDecretal. 4. 14. 3 & 9.
^mCo. Litt. 23.
.{FE}
from
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from the common anceftor, that is the degree in which they are related to each other. Thus Titius and his brother are related in the firft degree ; for from the father to each of them is counted only one : Titius and his nephew are related in the fecond degree ; for the nephew is two degrees removed from the common anceftor ; viz. his own grandfather, the father of Titius. Or, (to give a more illuftrious inftance from our Englifh annals) king Henry the feventh, who flew Richard the third in the battle of Bofworth, was related to that prince in the fifth degree. Let the propofitus therefore in the table of confanguinity reprefent king Richard the third, and the clafs marked (e) king Henry the feventh. Now their common ftock or anceftor was king Edward the third, the abavus in the fame table : from him to Edmond duke of York, the proavus, is one degree ; to Richard earl of Cambridge, the avus, two ; to Richard duke of York, the pater, three ; to king Richard the third, the propofitus, four : and from king Edward the third to John of Gant (a) is one degree ; to John earl of Somerfet (b) two ; to John duke of Somerfet (c) three ; to Margaret countefs of Richmond (d)four ; to king Henry the feventh (e) five. Which laft mentioned prince, being the fartheft removed from the common ftock, 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 perfons related, to the common ftock, and then downwards again to the other ; reckoning a degree for each perfon both afcending and defcending) thefe 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 anceftor, four ; to John of Gant, five ; to John earl of Somerfet, fix ; to John duke of Somerfet, feven ; to Margaret countefs of Richmond, eight ; to king Henry the feventh, nine ⁿ.
.{FS}
ⁿSee the table of confanguinity annexed ; wherein all the degrees of collateral kindred to the propofitus are computed, fo far as the tenth of the civilians and the feventh of the canonifts inclufive ; the former being diftinuifhed by the numeral letters, the latter by the common ciphers.
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The
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The nature and degrees of kindred being thus in fome meafure explained, I fhall next proceed to lay down a feries of rules, or canons of inheritance, according to which eftates are tranfmitted from the anceftor to the heir ; together with an explanatory comment, remarking their original and progrefs, the reafons upon which they are founded, and in fome cafes their agreement with the laws of other nations.
I.The firft rule is, that inheritances fhall lineally defcend to the iffue of the perfon laft actually feifed, in infinitum ; but fhall never lineally afcend.
To explain the more clearly both this and the fubfequent rules, it muft firft be obferved, that by law no inheritance can veft, nor can any perfon be the actual complete heir of another, till the anceftor is previoufly dead. Nemo eft haeres viventis. Before that time the time the perfon who is next in the line of fucceffion is called an heir apparent, or heir prefumptive. Heirs apparent are fuch, whofe right of inheritance is indefeafible, provided they outlive the anceftor ; as the eldeft fon or his iffue, who muft by the courfe of the common law be heirs to the father whenever he happens to die. Heirs prefumptive are fuch, who, if the anceftor fhould die immediately, would in the prefent circumftances of things be his heirs ; but whofe right of inheritance may be defeated by the contingency of fome nearer heir being born : as a brother, or nephew, whofe prefumptive fucceffion may be deftroyed by the birth of a child ; or a daughter, whofe prefent hopes may be hereafter cut off by the birth of a fon. Nay, even if the eftate hath defcended, by the death of the owner, to fuch brother, or nephew, or daughter ; in the former cafes the eftate fhall be devefted and taken away by the birth of a pofthumous child ; and, in the latter, it fhall alfo be totally devefted by the birth of a pofthumous fon ^o.
.{FS}
^oBro. tit. defcent. 58.
.{FE}
We
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We muft alfo remember, that no perfon can be properly fuch an anceftor, as that an inheritance in lands or tenements can be derived from him, unlefs he hath had actual feifin of fuch lands, either by his own entry, or by the poffeffion of his own or his anceftor's leffee for years, or be receiving rent from a leffee of the freehold ^p : or unlefs he hath had what is equivalent to corporal feifin in hereditaments that are incorporeal ; fuch as the receipt of rent, a prefentation to the church in café of an advowfon ^q, and the like. But he fhall not be accounted an anceftor, who hath had only a bare right or title to enter or be otherwife feifed. And therefore all the cafes, which will be mentioned in the prefent chapter, are upon the fuppofition that the deceafed (whofe inheritance is now claimed) was the laft perfon actually feifed thereof. For the law requires this notoriety of poffeffion, as evidence that the anceftor had that property in himfelf, which is now to be tranfmitted to his heir. Which notoriety hath fucceeded in the place of the antient feodal inveftiture, whereby, while feuds were precarious, the vafal on the defcent of lands was formerly admitted in the lord's court (as is ftill the practice in Scotland) and there received his feifin, in the nature of a renewal of his anceftors grant, in the prefence of the feodal peers : till at length, when the right of fucceffion became indefeafible, an entry on any part of the lands within the county (which if difputed was afterwards to be tried by thofe peers) or other notorious poffeffion, was admitted as equivalent to the formal grant of feifin, and made the tenant capable of tranfmitting his eftate by defcent. The feifin therefore of any perfon, thus underftood, makes him the root or ftock, from which all future inheritance by right of blood muft be derived : which is very briefly expreffed in this maxim, feifina facit ftipitem ^r.
.{FS}
^pCo. Litt. 15.
^qIbid. 11.
^rFlet. l. 6. c. 2. §. 2.
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When therefore a perfon dies fo feifed, the inheritance firft goes to his iffue : as if there be Geoffrey, John, and Matthew, grandfather, father, and fon ; and John purchafes land and dies ; his fon Matthew fhall fucceed him as heir, and not the grandfather Geoffrey ; to whom the land fhall never afcend, but fhall rather efcheat to the lord ^s.
This rule, fo far as it is affirmative and relates to lineal defcents, is almoft univerfally adopted by all nations ; and it feems founded on a principle of natural reafon, that (whenever a right of property tranfimiffible to reprefentatives is admitted) the poffeffions of the parents fhould go, upon their deceafe, in the firft place to their children, as thofe to whom they have give being, and for whom they are therefore bound to provide. But the negative branch, or total exclufion of parents and all lineal anceftors from fucceeding to the inheritance of their offspring, is peculiar to our own laws, and fuch as have been deduced from the fame original. For, by the Jewifh law, on failure of iffue the father fucceeded to the fon, in exclufion of brethren, unlefs one of them married the widow and raifed up feed to his brother ^t. And, by the laws of Rome, in the firft place the children or lineal defcendants were preferred ; and, on failure of thefe, the father and mother or lineal afcendants fucceeded together with the brethren and fifters ^v ; though by the law of the twelve tables the mother was originally, on account of her fex, excluded ^u. Hence this rule of our laws has been cenfured and declaimed againft, as abfurd and derogating from the maxims of equity and natural juftice ^w. Yet that there is nothing unjuft or abfurd in it, but that on the contrary it is founded upon very good reafon, may appear from confidering as well the nature of the rule itfelf, as the occafion of introducing in into our laws.
.{FS}
^sLitt. §. 3.
^tSelden. De fucceffe. Ebracor. C. 12.
^vFf. 38. 15. 1. Nov. 118. 127.
^uInft. 3. 3. 1.
^wCraig. De jur. Feud. l. 2. t. 13. §. 15. Locke on gov. part. 1. §. 90.
.{FE}
We
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We are to reflect, in the firft place, that all rules of fucceffion to eftates are creatures of the civil polity, and juris pofitivi merely. The right of property, which is gained by occupancy, extends naturally no farther than the life of the prefent poffeffor ; after which the land by the law of nature would again become common, and liable to be feifed by the next occupant : but fociety, to prevent the mifchiefs that might enfue from a doctrine fo productive of contention, has eftablifhed conveyances, wills, andfucceffions ; whereby the property originally gained by poffeffion is continued, and tranfmitted from one man to another, according to the rules which each ftate has refpectively thought proper to prefcribe. There is certainly therefore no injuftice done to individuals, whatever be the path of defcent marked out by the municipal law.
If we next confider the time and occafion of introducing this rule into our law, we fhall find it to have been grounded upon very fubftantial reafons. I think there is no doubt to be made, but that it was introduced at the famed time with, and in confequence of, the feodal tenures. For it was an exprefs rule of the feodal law ^x, that fucceffionis feudi talis eft natura, quod afcendentes non fuccedunt ; and therefore the fame maxim obtains alfo in the French law to this day ^y. Our Henry the firft indeed, among other reftorations of the old Saxon laws, reftored the right of fucceffion in the afcending line ^z : but this foon fell again into difufe ; for fo early as Glanvil's time, who wrote under Henry the fecond, we find it laid down as eftablifhed law ^a, that haereditas nunquam afcendit ; which has remained an invariable maxim ever fince. Thefe circumftances evidently fhew this rule to be of feodal original ; and, taken in that light, there are fome arguments in it's favour, befides thofe which are drawn merely from the reafon of the thing. For if the feud, of which the fon died
.{FS}
^x2 Feud. 50.
^yDomat. P. 2. l. 2. t. 2. Montefqu. Efp.
^zLL. Hen. I. C 70.
^al.7. c. 1.
.{FE}

Cc2

feifed,

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feifed, was really feudum antiquum, or one defcended to him from his anceftors, the father could not poffibly fucceed to it, becaufe if muft have paffed him in the courfe of defcent, before it could to the fon ; unlefs it were feudum maternum, or one defcended from his mother, and then for other reafons (which will appear hereafter) the father could in no wife inherit it. and if it were feudum novum, or one newly acquired by the fon, then only the defcendants from the body of the feudatory himfelf could fucceed, by the known maxim of the early feodal conftitutions ^b ; which was founded as well upon the perfonal merit of the vafal, which might be tranfmitted to his children but could not afcend to his progenitors, as alfo upon this confideration of military policy, that the decrepit grandfire of a vigorous vafal would be but indifferently qualified to fucceed him in his feodal fervices. Nay, even if this feudum novum were held by the fon ut feudum antiquum, or with all the qualities annexed of a feud defcended from his anceftors, fuch feud muft in all refpects have defcended as if it had been really an antient feud ; and therefore could not go to the father, becaufe, if it had been an antient feud, the father muft have been dead before t could have come to the fon. Thus whether the feud was ftrictly novum, or ftrictly antiquum, or whether it was novum held ut antiquum, in none of thefe cafes the father could poffibly fucceed. Thefe reafons, drawn from the hiftory of the rule itfelf, feem to be more fatisfactory than that quaint one of Bracton ^c, adopted by fir Edward Coke ^d, which regulates the defcent of lands according to the laws of gravitation.
II.A second general rule or canon is, that the male iffue fhall be admitted before the female.
.{FS}
^b1 Feud. 20.
^cDefcendit itaque jus, quafi pondero fum quid, cadens deorfum recta linea, et nunquam reafcendit. l. 2. c. 29.
^d1 Inft. 11.
.{FE}
Thus
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Thus fons fhall be admitted before daughters ; or, as our male lawgivers have fomewhat uncomplaifantly expreffed it, the worthieft of blood fhall be preferred ^e. As if John Stiles hath two fons, Matthew and Gilbert, and two daughters, Margaret and Charlotte, and dies ; firft Matthew, and (in café of his death without iffue) then Gilbert, fhall be admitted to the fucceffion in preference to both the daughters.
This preference of males to females is entirely agreeable to the law of fucceffion among the Jews ^f, and alfo among the ftates of Greece, or at leaft among the Athenians ^g ; but was totally unknown to the laws of Rome ^h, (fuch of them, I mean, as are at prefent extant) wherein brethren and fifters were allowed to fucceed to equal portions of the inheritance. I fhall not here enter into the comparative merit of the roman and the other conftitutions is this particular, nor examine into the greater dignity of blood in the male or female fex ; but fhall only obferve, that our prefent preference of males to females feems to have arifen entirely from the feodal law. For though our Britifh anceftors, the Welfh, appear to have given a preference to males ^I, yet our fubfequent Danifh predeceffors feem to have made no diftinction of fexes, but to have admitted all the children at once to the inheritance ^k. But the feodal law of the Saxons on the continent (which was probably brought over hither, and firft altered by the law of king Canute) gives an evident preference of the male to the female fex. “ Pater aut mater, defuncti, filio non “ filiae haereditatem relinquent......................Lui defunctus non filios fed “ filias reliquerit, ad eas omnis haereditas pertineat ^l.” It is poffible therefore that this preference might be a branch of that imperfect fyftem of feuds, which of feuds, which obtained here before the conqueft ; efpe-
.{FS}
^eHal. H. C. L. 235.
^fNumb. C. 27.
^gPetit. LL. Attic. L.6. r. 6.
^hInft. 3. 1. 6.
^IStat. Wall. 12 Edw. I.
^kLL. Canut. c. 68.
^ltit. 7. §. 1 & 4.
.{FE}
cially
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cially as it fubfifts among the cuftoms of gavelkind, and as, in the charter or laws of king Henry the firft, it is not (like many Norman innovations) given up, but rather enforced ^m. The true reafon of preferring the males muft be deduced from feodal principles : for, by the genuine and original policy of that conftitution, no female could ever fucceed to a proper feud ⁿ, inafmuch as they were incapable of performing thofe military fervices, for the fake of which that fyftem was eftablifhed. But our law does not extend to a total exclufion of females, as the Salic law, and others, where feuds were moft ftrictly retained : it only poftpones them to males ; for, though daughters are excluded by fons, yet they fucceed before any collateral relations : our law, like that of the Saxon feudifts before-mentioned, thus fteering a middle courfe, between the abfolute rejection of females, and the putting them on a footing with males.
III.A third rule, or canon of defcent, is this ; that, where there are two or more males in equal degree, the eldeft only fhall inherit ; but the females all together.
As if a man hath two fons, Matthew and Gilbert, and two daughters, Margaret and Charlotte, and dies ; Matthew his eldeft fon fhall alone fucceed to his eftate, in exclufion of Gilbert the fecond fon and both the daughters : but, if both the fons die without iffue before the father, the daughters Margaret and Charlotte fhall both inherit the eftate as coparceners ^o.
This right of primogeniture in males feems antiently to have only obtained among the Jews, in whofe conftitution the eldeft fon had a double portion of the inheritance ^p ; in the fame manner as with us, by the laws of king Henry the firft ^q, the eldeft fon had the capital fee or principal feud of his father's poffeffions,
.{FS}
^mc. 70.
ⁿ1 Feud. 8.
^oLitt. §. 5. Hale. H. C. L. 238.
^pSelden. De fucc. Ebr. c. 5.
^qc. 70.
.{FE}
and
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and no other pre-eminence ; and as the eldeft daughter had afterwards the principal manfion, when the eftate defcended in coparcenary ^r. The Greeks, the Romans, the Britons, the Saxons, and even originally the feudifts, divided the lands equally ; fome among all the children at large, fome the males only. This is certainly the moft obvious and natural way ; and has the appearance, at leaft in the opinion of younger brothers, of the greateft impartiality and juftice. But when the emperors began to create honorary feuds, or titles of nobility, it was found neceffary (in order to preferve their dignity) to make them impartible ^s, or (as they ftiled them) feuda individua, and in confequence defcendible to the eldeft fon alone. This example was farther enforced by the inconveniences that attended the fplitting of eftates ; namely, the divifion of the military fervices, the multitude of infant tenants incapable of performing any duty, the confequential weakening of the ftrength of the kingdom, and the inducing younger fons to take up with the bufinefs and idlenefs of a country life, inftead of being ferviceable to themfelves and the public, by engaging in mercantile, in military, in civil, or in ecclefiaftical employments ^t. Thefe reafons occafioned an almoft total change in the method of feodal inheritances abroad ; fo that the eldeft male began univerfally to fucceed to the whole of the lands in all military tenures : and in this condition the feodal conftitution was eftablifhed in England by William the conqueror.
Yet we find, that focage eftates frequently defcended to all the fons equally, fo lately as when Glanvil ^u wrote, in the reign of Henry the fecond ; and it is mentioned in the mirror ^w as a part of our antient conftitution, that knights' fees fhould defcend to the eldeft fon, and focage fees fhould be partible among the male children. However in Henry the third's time we find by Bracton ^x that focage lands, in imitation of lands in chivalry, had
.{FS}
^rGlanvil. l. 7. c. 3.
^sFeud. 55.
^tHale. H. C. I. 221.
^ul. 7. c. 3.
^wl. 1. §. 3.
^xl. 2. co. 30, 31.
.{FE}
almoft
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almoft entirely fallen into the right of fucceffion by primogeniture, as the law now ftands : except in Kent, where they gloried in the prefervation of their antient gavelkind tenure, of which a principal branch was the joint inheritance of all the fons ^y ; and except in fome particular manors and townfhips, where their local cuftoms continued the defcent, fometimes to all, fometimes to the youngeft fon only, or in other more fingular methods of fucceffion.
As to the females, they are ftill left as they were by the antient law : for they were all equally incapable of performing any perfonal fervice ; and therefore, one main reafon of preferring the eldeft ceafing, fuch preference would have been injurious to the reft : and the other principal purpofe, the prevention of the too minute fubdivifion of eftates, was left to be confidered and provided for by the lords, who had the difpofal of thefe female heireffes in marriage. However, the fucceffion by primogeniture, even among females, took place as to the inheritance of the crown ^z ; wherein the neceffity of a fole and determinate fucceffion is as great in the one fex as the other. And the right of fole fucceffion, though not of primogeniture, was alfo eftablifhed with refpect to female dignities and titles of honour. For if a man holds an earldom to him and the heirs of his body, and dies, leaving only daughters ; the eldeft fhall not of courfe be countefs, but the dignity is in fufpenfe or abeyance till the king fhall declare his pleafure ; for he, being the fountain of honour, may confer it on which of them he pleafes ^a. In which difpofition is preferved a ftrong trace of the antient law of feuds, before their defcent by primogeniture even among the males was eftablifhed ; namely, that the lord might beftow them on which of the fons he thought proper : ------- “ progreffumeft, ut ad filios deveniret, in “quem fcilicetdominus boc vellet beneficium confirmare ^b.”
.{FS}
^ySomner. Gavelk. 7.
^zc. Litt. 165.
^aIbid.
^b1 Feud. i.
.{FE}
IV. A fourth
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IV. A fourth rule, or canon of defcents, is this ; that the lineal defcendants, in infinitum, of any perfon deceafed fhall reprefent their anceftor ; that is, fhall ftand in the fame place as the perfon himfelf would have done, had he been living.
Thus the child, grandchild, or great-grandchild (either male or female) of the eldeft fon fucceeds before the younger fon, and fo in infinitum ^c. And thefe reprefentatives fhall take neither more nor lefs, but juft fo much as their principals would have done. As if there be two fifters, Margaret and Charlotte ; and Margaret dies, leaving fix daughters ; and then John Stiles the father of the two fifters dies, without other iffue : thefe fix daughters fhall take among them exactly the fame as their mother Margaret would have done, had fhe been living ; that is, a moiety of the lands of John Stiles in coparcenary : fo that, upon partition made, if the land be divided into twelve parts, thereof Charlotte the furviving fifter fhall have fix, and her fix nieces, the daughters of Margaret, one apiece.
This taking by reprefentation is called a fucceffion in ftirpes, according to the roots ; fince all the branches inherit the fame fhare that their root, whom they reprefent, would have done. And in this manner alfo was the Jewifh fucceffion directed ^d; but the roman fomewhat differed from it. In the defcending line the right of reprefentation contimued in infinitum, and the inheritance ftill defcended in ftirpes : as if one of three daughters died, leaving ten children, and then the father died ; the two furviving daughters had the remaining third divided between them. And fo among collaterals, if any perfons of equal degree with the perfons reprefented were ftill fubfifting, (as if the deceafed left one brother, and two nephews the fons of another brother) the fucceffion was ftill guided by the roots : but, if both the brethren were dead leaving iffue, then (I apprehend) their repre-
.{FS}
^cHale. H. C. L. 236, 237.
^dSelden de fucc. Ebr. c. 1.
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fentatives in equal degree became themfelves principals, and fhared the inheritance per capita, that is, fhare and fhare alike ; they being themfelves now the next in degree to the anceftor, in their own right, and not by right of reprefentation ^e. So, if the next heirs of Titius be fix nieces, three by one fifter, two by another, and one by a third ; his inheritance by the Roman law was divided into fix parts, and one given to each of the nieces : whereas the law of England in this café would ftill divide it only into three parts, and diftribute it per ftirpes, thus ; one third to the three children who reprefent one fifter, another third to the two who reprefent the fecond, and the remaining third to the one child who is the fole reprefentative of her mother.
This mode of reprefentation is a neceffary confequence of the double preference given by our law, firft to the male iffue, and next to the firftborn among the males, to both which the Roman law is a ftranger. For if all the children of three fifters were in England to claim per capita, in their own rights as next of kin to the anceftor, without any refpect to the ftocks from whence they fprung, and thofe children were partly male and partly female ; then the eldeft male among them would exclude not only his own brethren and fifters, but all the iffue of the other two daughters ; or elfe the law in this inftance muft be inconfiftent with itfelf, and depart from the preference which it conftantly gives to the males, and the firftborn, among perfons in equal degree. Whereas, by dividing the inheritance according to the roots or ftirpes, the rule of defcent is kept uniform and fteady : the iffue of the eldeft fon excludes all other pretenders, as the fon himfelf (if living) would have done ; but the iffue of two daughters divide the inheritance between them, provided their mothers (if living) would have done the fame : and among thefe feveral iffues, or reprefentatives of the refpective roots, the fame preference to males and the fame right of primogeniture obtain, as would have obtained at the firft among the roots themfelves, the fons or daughters of the deceafed. As if a man hath
.{FS}
^oNov. 118. c.3.Inft. 3. 1. 6.
.{FE}
two
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two fons, A and B, and A dies leaving two fons, and then the grandfather dies ; now the eldeft fon of A fhall fucceed to the whole of his grandfather's eftate : and if A had left only two daughters, they fhould have fucceeded alfo to equal moieties of the whole, in exclufion of B and his iffue. But if a man hath only three daughters, C, D, and E; and C dies leaving two fons, D leaving two daughters, and E leaving a daughter and a fon who is younger than his fifter : here, when the grandfather dies, the eldeft fon of C fhall fucceed to one third, in exclufion of the younger ; the two daughters of D to another third in partnerfhip ; and the fon of E to the remaining third, in exclufion of his elder fifter. And the fame right of reprefentation, guided and reftrained by the fame rules of defcent, prevails downwards in infinitum.
Yet this right does not appear to have been thoroughly eftablifhed in the time of Henry the fecond, when Glanvil wrote ; and therefore, in the title to the crown efpecially, we find frequent contefts between the younger (but furviving) brother, and his nephew (being the fon and reprefentative of the elder deceafed) in regard to the inheritance of their common anceftor : for the uncle is certainly nearer of kin to the common ftock, by one degree, than the nephew ; though the nephew, by reprefenting his father, has in him the right of primogeniture. The uncle alfo was ufually better able to perform the fervices of the fief ; and befides had frequently fuperior intereft and ftrength, to back his pretenfions and crufh the right of his nephew. And even to this day, in the lower Saxony, proximity of blood takes place of reprefentative primogeniture ; that is, the younger furviving brother is admitted to the inheritance before the fon of an elder deceafed : which occafioned the difputes between the two houfes of Mecklenburg, Schwerin and Strelitz, in 1692 ^f. Yet Glanvil, with us, even in the twelfth century, feems ^g to declare for the right of the nephew by reprefentation ; provided the eldeft fon had not received a provifion in lands from his father, (or as the
.{FS}
^fMod. Un. Hift. xliii. 334.
^gl. 7. c. 3.
.{FE}

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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 difputing this right of reprefentation, did all in his power to abolifh it throughout the realm ^h : but in the time of his fon, king Henry the third, we find the rule indifputably fettled in the manner we have here laid it down ^I, and fo it has continued ever fince. And thus much for lineal defcents.
V. A fifth rule is, that, on failure of lineal defcendants, or iffue, of the perfon laft feifed, the inheritance fhall defcend to the blood of the firft purchafor ; fubject to the three preceding rules.
Thus if Geoffrey Stiles purchafes land, and it defcends to John Stiles his fon, and John dies feifed thereof without iffue ; whoever fucceeds to this inheritance muft be of the blood of Geoffrey the firft purchafor of this family ^k. The firft purchafor, perquifitor, is he who firft acquired the eftate to his family, whether the fame was transferred to him by fale, or by gift, or by any other method, except only that of defcent.
This is a rule almoft peculiar to our own laws, and thofe of a fimilar original. For it was entirely unknown among the Jews, Greeks, and Romans : none of whofe laws looked any farther than the perfon himfelf who died feifed of the eftate ; but affigned him an heir, without confidering by what title he gained it, or from what anceftor he derived it. but the law of Normandy ^l agrees with our law in this refpect : nor indeed is that agreement to be wondered at, fince the law of defcents in both is of feodal original ; and this rule or canon cannot otherwife be accounted for than by recurring to feodal principles.
When feuds firft began to be hereditary, it was made a neceffary qualification of the heir, who would fucceed to a feud, that he fhould be of the blood of, that is lineally defcended from,
.{FS}
^hHale. H. C. L. 217, 229.
^IBracton. L. 2. c. 30. §. 2.
^kCo. Litt. 12.
^lGr. Couftum. 6. 25.
.{FE}
the
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the firft feudatory or purchafor. In confequence whereof, if a vafal died poffeffed of a feud of his own acquiring, or feudum novum, it could not defcend to any but his own offspring ; no, not even to his brother, becaufe he was not defcended, nor derived his blood, from the firft acquirer. But if it was feudum antiquum, that is, one defcended to the vafal from his anceftors, then his brother, or fuch other collateral relation as was defcended and derived his blood from the firft feudatory, might fucceed to fuch inheritance. To this purpofe fpeaks the following rule, “ frater fratri fine legitimo haerede defuncto, in beneficio quod eorum “ patris fuit, fuccedat : fin autem unus e fratribus a domino feudum acceperit, eo defuncto fine legitimo baerede, frater ejus in feudum non fuccedit ^m.” The true feodal reafon for which rule was this ; that what was given to a man, for his perfonal fervice and perfonal merit, ought not to defcend to any but the heirs of his perfon. And therefore, as in eftates-tail, (which a proper feud very much refembled) fo in the feodal donation, “nomen baeredis, “ in prima inveftitura expreffum, tantum ad defcendentes ex corpore “ primi vafalli extenditur ; et non ad collaterales, nifi ex corpore “ primi vafalli five ftipitis defcendant ⁿ :” the will of the donor, or original lord, (when feuds were turned from life eftates into inheritances) not being to make them abfolutely hereditary, like the Roman allodium, but hereditary only fub modo ; not hereditary to the collateral relations, or lineal anceftors, or hufband, or wife of the feudatory, but to the iffue defcended from his body only.
However, in procefs of time, when the feodal rigour 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 anceftors ; and then the collateral relations were admitted to fucceed even in infinitum, becaufe they might have been of the blood of, that is defcended from, the firft imaginary purchafor. For fince it is not afcertained
.{FS}
^m1 Feud. 1. §. 2.
ⁿCrag. L. 1. t. 9. §. 36.
.{FE}
in
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in fuch general grants, whether this feud fhall be held ut feudum paternum, or feudum avitum, but ut feudum antiquum merely, as a feud of indefinite antiquity ; that is, fince it is not afcertained from which of the anceftors of the grantee this feud fhall be fuppofed to have defcended ; the law will not afcertain it, but will fuppofed any of his anceftors, pro re nata, to have been the firft purchafor : and therefore it admits any of his collateral kindred (who have the other neceffary requifites) to the inheritance, becaufe every collateral kinfman muft be defcended from fome one of his lineal anceftors.
Of this nature are all the grants of fee-fimple eftates of this kingdom ; for there is now in the law of England no fuch thing as a grant of a feudum novum, to be held ut novum ; unlefs in the café of a fee-tail, and there we fee that this rule is ftrictly obferved, and none but the lineal defcendants of the firft donee (or purchafor) are admitted : but every grant of lands in fee-fimple is with us a feudum novum to held ut antiquum, as a feud whofe antiquity is indefinite ; and therefore the collateral kindred of the grantee, or defcendants from any of his lineal anceftors, by whom the lands might have poffibly been purchafed, are capable of being called to the inheritance.
Yet, when an eftate hath really defcended in a courfe of inheritance to the perfon laft feifed, the ftrict rule of the feodal law is ftill obferved ; and none are admitted, but the heirs of thofe through whom the inheritance hath paffed : for all others have demonftrably none of the blood of the firft purchafor in them, and therefore fhall never fucceed. As, if lands come to John Stiles by defcent from his mother Lucy Baker, no relation of his father (as fuch) fhall ever be h is heir of thefe lands ; and, vice verfa, if they defcended from his father Geoffrey Stiles, no relation of his mother (as fuch) fhall ever be admitted thereto ; for his father's kindred have none of his mother's blood, nor have his mother's relations any fhare of his father's blood. And fo, if the eftate defcended from his father's father, George Stiles ;
the
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the relations of his father's mother, Cecilia Kempe, fhall for the fame reafon never be admitted, but only thofe of his father's father. This is alfo the rule of the French law ^o, which is derived from the fame feodal fountain.
Here we may obferve, that, fo far as the feud is really antiquum, the law traces it back, and will not fuffer any to inherit but the blood of thofe anceftors, 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 Chriftian Smith ; or if it appear that his grandfather was the firft grantee, and fo took it (by the general law) as a feud of indefinite antiquity ; in either of thefe cafes the law admits the defcendants of any anceftor of George Stiles, either paternal or maternal, to be in their due order the heirs to John Stiles of this eftate : becaufe in the firft café it is really uncertain, and in the fecond café it is fuppofed 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 iffue in the laft proprietor, the eftate fhall defcend to the blood of the firft purchafor ; or, that it fhall refult back to the heirs of the body of that anceftor, from whom it either really ahs, or is fuppofed by fiction of law to have, originally defcended : according to the rule laid down in the yearbooks ^p, Fitzherbert ^q, Brook ^r, and Hale ^s ; “ that he who would have been heir to the “ father of the deceafed” (and, of courfe, to the mother, or any other purchafing anceftor) “ fhall alfo be heir to the fon.”
The remaining rules are only rules of evidence, calculated to inveftigate who that purchafing anceftor was ; which, in feudis
.{FS}
^oDomat. Part. 2. pr.
^pM. 12. Edw. IV. 14.
^qAbr. T. difcent. 2.
^rIbid. 38.
^sH. C. L. 243.
.{FE}
vere
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vere antiquis, has in procefs of time been forgotten, and is fuppofed fo to be in feuds that are held ut antiquis.
VI. A sixth rule or canon therefore is, that the collateral heir of the perfon laft feifed muft be his next collateral kinfman, of the whole blood.
First, he muft be his next collateral kinfman, either perfonally or jure reprefentationis ; which proximity is reckoned according to the canonical degrees of confanguinity before-mentioned. Therefore, the brother being in the firft degree, he and his defcendants fhall exclude the uncle and his iffue, who is only in the fecond. And herein confifts the true reafon of the different methods of computing the degrees of confanguinity, in the civil law on the on hand, and it the canon and common laws on the other. The civil law regards confanguinity principally with refpect to fucceffions, and therein very naturally confiders only the perfon deceafed, to whom the relation is claimed : it therefore counts the degrees of kindred according to the number of perfons through whom the claim muft be derived from him ; and makes not only his great-nephew but alfo his firft-coufin to be both related to him in the fourth degree ; becaufe there are three perfons between him and each of them. The canon law regards confanguinity principally with a view to prevent inceftuous marriages, between thofe who have a large portion of the fame blood running in their refpective veins ; and therefore looks up to the author of that blood, or the common anceftor, reckoning the degrees from him : fo that the great-nephew is related in the third canonical degree to the perfon propofed, and the firft-coufin in the fecond ; the former being diftant three degrees from the common anceftor, and therefore deriving only one fourth of his blood from the fame fountain with propofitus ; the later, and alfo the propofitus, being each of them diftant only two degrees from the common anceftor, the therefore having one half of each of their bloods the fame. The common law regards confanguinity principally with refpect to defcents ; and, having therein the fame object in
view
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view as the civil, it may feem as if it ought to proceed according to the civil computation. But as it alfo refpect the purchafing anceftor, from whom the eftate was derived, it therein refembles the canon law, and therefore courts it's degrees in the fame manner. Indeed the defignation of perfon (in feeking for the next of kin) will come to exactly the fame end (though the degrees will be differently numbered) whichever method of computation we fuppofed the law of England to ufe ; fince the right of reprefentation (of the father by the fon, &c) is allowed to prevail in infinitum. This allowance was abfolutely neceffary, elfe there would have frequently been many claimants in exactly the fame degree of kindred, as (for inftance) uncles and nephews of the deceafed ; which multiplicity, though no inconvenience in the Roman law of partible inheritances, yet would have been productive of endlefs confufion where the right of fole fucceffion, as with us, is eftablifhed. The iffue or defcendants therefore of John Stiles's brother are all of them in the firft degree of kindred with refpect fo inheritances, as their father alfo, when living was ; thofe of his uncle in the fecond ; and fo on ; and are feverally called to the fucceffion in right of fuch their reprefentative proximity.
The right of reprefentation being thus eftablifhed, the former part of the prefent rule amounts to this ; that, on failure of iffue of the perfon laft feifed, the inheritance fhall defcend to the iffue of his next immediate anceftor. Thus if John Stiles dies without iffue, his eftate fhall defcend to Francis his brother, who is lineally defcended from Geoffrey Stiles his next immediate anceftor, or father. On failure of brethren, or fifters, and their iffue, it fhall defcend to the uncle of John Stiles, the lineal defcendant of his grandfather George, and fo on in infinitum. Very fimilar to which was the law of inheritance among the antient Germans, our progenitors : “ haeredes fuccefforefque fui cuique liberi, et nullum “teftamentum : fi liberi non funt, proximus gradus in poffeffione, “ fraters, patrui, avunculi ^t.”
.{FS}
^tTacitus de mor. Germ. 21.
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Now here it muft be obferved, that the lineal anceftors, though (according to the firft rule) incapable themfelves of fucceeding to the eftate, becaufe it is fuppofed to have already paffed them, are yet common ftocks from which the next fucceffor muft fpring. And therefore in the Jewifh law, which in this refpect entirely correfponds with ours ^u, the father or other lineal anceftor is himfelf faid to be the heir, though long fince dead as being reprefented by the perfons of his iffue ; who are held to fucceed not in their own rights, as brethren, uncles, &c, but in right of reprefentation, as the fons of the father, grandfather, &c, of the deceafed ^v. But, though the common anceftor be thus the root of the inheritance, yet with us it is not neceffary to name him in making out the pedigree or defcent. For the defcent between two brothers is held to be an immediate defcent ; and therefore title may be made by one brother or his reprefentatives to or through another, without mentioning their common father ^w. If Geoffrey Stiles hath two fons, John and Francis, Francis may claim as heir to John, without naming their father Geoffrey : and fo the fon of Francis may claim as coufin and heir to Matthew the fon of John, without naming the grandfather ; viz as fon of Francis, who was the brother of John, who was the father Matthew. But through the common anceftors are not named in deducing the pedigree, yet the law ftill refpects them as the fountains of inheritable blood : and therefore in order to afcertain the collateral heir of John Stiles, it is in the firft refpects them as the fountains of inheritable blood : and therefore in order to afcertain the collateral heir of John Stiles, it is in the firft place neceffary to recur to his anceftors in the firft degree ; and if they have left any other iffue befides John, that iffue will be his heir. On default of fuch, we muft afcend one ftep higher to the anceftors in the fecond degree, and then to thofe in the third, and fourth, and fo upwards in infinitum ; till fome anceftors be found, who have other iffue defcending from them befides the deceafed, in a parallel or collateral line. Form thefe anceftors the heir of John Stiles muft derive his defcent; and in fuch derivation the fame rules muft

.{FS}
^uNumb. C. 27.
^vSelden. de fucc. Ebr. c. 12.
^w1 Sid. 193. 1 Lev. 60. 12 Mod. 619.
.{FE}
be
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be obferved, with regard to fex, primogeniture, and reprefentation, that have juft been laid down with regard to lineal defcents from the perfon of the laft proprietor.
But, fecondly, the heir need not be the neareft kinfman abfolutely, but only fub modo ; that is, he muft be the neareft kinfman of the whole blood ; for, if there be a much nearer kinfman of the half blood, a diftant kinfman of the whole blood fhall be admitted, and the other entirely excluded.
A kinsman of the whole blood is he that is derived, not only from the fame anceftor, but from the fame couple of anceftors. For, as every man's own blood is compounded of the bloods of his refpective anceftors, he only is properly of the whole or entire blood with another, who hath (fo far as the diftance of degrees will permit) all the fame ingredients in the compofition of his blood that the other hath. Thus, the blood of John Stiles being compofed of thofe of Geoffrey Stiles his father and Lucy Baker his mother, therefore his brother Francis, being defcended from both the fame parents, hath entirely the fame 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 fecond hufband, Lewis Gay, and hath iffue by him ; the blood of this iffue, being compounded of the blood of Lucy Baker (if is true) on the one part, but of that of Lewis Gay (inftead of Geoffrey Stiles) on the other part, it hath therefore only half the fame ingredients with that of John Stiles ; fo that he is only his brother of the half blood, and for that reafon they fhall never inherit to each other. So alfo, if the father has two fons, A and B, by different venters or wives ; now thefetwo brethren are not brethren of the whole blood, and therefore fhall never inherit to each other, but the eftate fhall rather efcheat to the lord. Nay, even if the father dies, and his lands defcend to his eldeft fon A, who enters thereon, and dies feifed without iffue ; ftill B fhall not be heir to this eftate, becaufe he is only of the half blood to A, the perfon laft feifed : but, had A died without en-

Ee2

try

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try, then B might have inherited ; not as heir to A his half-brother, but as heir to their common father, who was the perfon laft actually feifed ^x.
This total exclufion of the half blood from the inheritance, being almoft peculiar to our own law, is looked upon as a ftranger hardfhip by fuch as are unacquainted with the reafons on which it is grounded. But thefe cenfures arife from a mifapprehenfion of the rule ; which is not fo much to be confidered in the light of a rule of defcent, as of a rule of evidence ; an auxiliary rule, to carry a former into execution. And here we muft again remember, that the great and moft univerfal principle of collateral inheritances being this, that an heir to a feudum antiquum muft be of the blood of the firft feudatory or purchafor, that is, derived in a lineal defcent from him ; it was originally requifite, as upon gifts in tail it ftill is, to make out the pedigree of the heir from the firft donee or purchafor, and to fhew that fuch heir was his lineal reprefentative. But when, by length of time and a long courfe of defcents, it came (in thofe rude and unlettered ages) to be forgotten who was really the firft feudatory or purchafor, and thereby the proof of an actual defcent from him became impoffible ; proof : for it remits the proof of an actual defcent from the firft purchafor ; and only requires, in lieu of it, that the claimant be next of the whole blood to the perfon laft in poffeffion ; (or derived from the fame couple of anceftors) which will probably anfwer the fame end as if he could trace his pedigree in a direct line from the firft purchafor. For he who is my kinfman of the whole blood can have no anceftors beyond or higher than the common ftock, but what are equally my anceftors alfo ; and mine are vice verfa his : he therefore is very likely to be derived from that unknown anceftor of mine, from whom the inheritance defcended. But a kinfman of the half blood has but one halfof his anceftors above the common ftock the fame as mine ; and therefore there is not the
.{FS}
^xHale. H. C. L. 238.
^yTenures. 186.
.{FE}

1. fame
   

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fame probability of that ftanding requifite in the law, that he be derived from the blood of the firft purchafor.
To illuftrate this by example. Let there be John Stiles, and Francis, brothers by the fame father and mother, and another fon of the fame mother by Lewis Gay a fecond hufband. Now, if John dies feifed of lands, but it is uncertain whether they defcended to him from his father or mother ; in this café his brother Francis, of the whole blood, is qualified to be his heir ; for he is fure to be in the line of defcent from the firft purchafor, whether it were the line of the father or the mother. But if Francis fhould die before John, without iffue, the mother's fon by Lewis Gay (or brother of the half blood) is utterly incapable of being heir ; for he cannot prove his defcent from the firft purchafor, who is unknown, nor has he that fair probability which the law admits as prefumptive evidence, fince he is to the full as likely not to be defcended from the line of the firft purchafor, as to be defcended : and therefore the inheritance fhall go to the neareft relation poffeffed of this prefumptive proof, the whole blood.
And, as this is the café in feudis antiquis, where there really did once exift a purchafing anceftor, who is forgotten ; it is alfo the café in feudis novis held ut antiquis, where the purchafing anceftor is merely ideal, and never exifted but only in fiction of law. Of this nature are all grants of lands in fee-fimple at this day, which are inheritable as if they defcended from fome uncertain indefinite anceftor, and therefore any of the collateral kindred of the real modern purchafor (and not his own offspring only) may inherit them, provided they be of the whole blood ; for all fuch are, in judgment of law, likely enough to be derived from this indefinite anceftor : but thofe of the half blood are excluded, for want of the fame probability. Nor fhould this be thought hard, that a brother of the purchafor, though only of the half blood, muft thus be difinherited, and a more remote relation of the whole blood admitted, merely upon a fuppofition and
fiction
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fiction of law ; fince it is only upon a like fuppofition and fiction, that brethren of purchafors (whether of the whole or half blood) are entitled to inherit at all : for we have feen that in feudis ftrictenovis neither brethren nor any other collaterals were admitted. As therefore in feudis antiquis we have feen the reafonablenefs of excluding the half blood, if by a fiction of law a feudum novum be made defcendible to collaterals as if it was feudum antiquum, it is juft and equitable that it fhould be fubject to the fame reftrictions as well as the fame latitude of defcent.
Perhaps by this time the exclufion of the half blood does not appear altogether fo unreafonable, as at firft fight it is apt to do. It is certainly a very fine-fpun and fubtile nicety : but, confidering the principles upon which our law is founded, it is neither an injuftice nor a hardfhip ; fince even the fucceffion of the whole blood was originally a beneficial indulgence, rather than the ftrict 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 poffibly have enjoyed before. The doctrine of whole blood was calculated to fupply the frequent impoffibility of proving a defcent from the firft purchafor, without fome proof of which (according to our fundamental maxim) there can be no inheritance allowed of. And this purpofe it anfwers, for the moft part, effectually enough. I fpeak with thefe reftrictions, becaufe it does not, neither can any other method, anfwer this purpofe entirely. For though all the anceftors of John Stiles, above the common ftock, are alfo the anceftors of his collateral kinfman of the whole flood ; yet, unlefs that common ftock be in the firft degree, (that is, unlefs they have the fame father and mother) there will be intermediate anceftors below the common ftock, that may belong to either of them refpectively, from which the other is not defcended, and therefore can have none of their blood. Thus, though John Stiles and his brother of the whole blood can each have no other anceftors, than what are in common to them both ; yet with regard to his uncle, where the common ftock is removed one degree higher, (that is,
the
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the grandfather and grandmother) one half of John's anceftors will not be the anceftors of his uncle : his patruss, or father's brother, derives not his defcent from John's maternal anceftors ; nor his avunculus, or mother's brother, from thofe in the paternal line. Here then the fupply of proof is deficient, and by no means amounts to a certainty : and, the higher the common ftock is removed, the more will even the probability decreafe. But it muft be obferved, that (upon the fame principles of calculation) the half blood have always a much lefs chance to be defcended from an unknown indefinite anceftor of the deceafed, than the whole blood in the fame degree. As, in the firft degree, John's uncle of the whole blood has an even chance ; but the chances are three to one againft his uncle of the half blood, for three fourths of John's anceftors are not his. In like manner, in the third degree, the chances are only three to one againft John's great uncle of the whole blood, but they are feven to one againft his great uncle of the half blood, for feven eighths fo John's anceftors have no connexion in blood with him. Therefore the much lefs probability of the half blood's defcent from the firft purchafor, compared with that of the whole blood, in the feveral degrees, ahs occafioned a general exclufion of the half blood in all.
But, while I thus illuftrate the reafon of excluding the half blood in general, I muft be impartial enough to own, that, in fome inftances, the practice is carried farther than the principle upon which it goes will warrant. Particularly, when a man has two fons by different venters, and the eftate on his death defcends from him to the eldeft, who enters, and dies without iffue : now the younger fon cannot inherit this eftate, becaufe he is not of the whole blood to the laft proprietor. This, it muft be owned, carries a hardfhip with it, even upon feodal principles : for the rule was introduced only to fupply the proof of a defcent from the firft purchafor ; but here, as this eftate notorioufly defcended from
the
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the father, and as both the brothers confeffedly fprung from him, it is demonftrable that the half brother muft be of the blood of the firft purchafor, who was either the father or fome of the father's anceftors. When therefore there is actual demonftration of the thing to be proved, it is hard to exclude a man by a rule fubftituted to fupply that proof when deficient. So far as the inheritance can be evidently traced back, there feems no need of calling in this prefumptive proof, this rule of probability, to inveftigate what is already certain. Had the elder brother indeed been a purchafor, there would have been no hardfhip at all, for the reafons already given : or had the frater uterinus only, or brother by the mother's fide, been excluded from an inheritance which defcended from the father, it had been highly reafonable.
Indeed it is this very inftance, of excluding a frater confanguineus, or brother by the father's fide, from an inheritance which defcended a patre, that Craig ^z has fingled out, on which to ground his ftrictures on the Englifh law of half blood. And, really, it fhould feem, as if the cuftom of excluding the half blood in Normandy ^a extended only to exclude a frater uterinus, when the inheritance defcended a patre, and vice verfa : as even with us it remained a doubt, in the time of Bracton ^b, and of Fleta ^c, whether the half blood on the father's fide were excluded from the inheritance which originally defcended from the common father, or only from fuch as defcended from the refpective mothers, and from newly purchafed lands. And the rule of law, as laid down by our Fortefcue ^d, extends no farther than this ; frater fratri uterino non fuccedet in haereditate paterna. It is moreover worthy of obfervation, that by our law, as it now ftands, the crown (which is the higheft inheritance in the nation) may defcend to the half blood of the preceding fovereign ^e, fo as it be the blood of the firft monarch, purchafor, or (in the feodal language) conqueror, of the reigning family. Thus it actually
.{FS}
^xl. 2. t. 15. §. 14.
^aGr. Couftum. c. 25.
^bl. 2. c. 30. §. 3.
^cl. 6. c. i. §. 14.
^dde laud. LL. Angl. 5.
^ePlowd. 245. Co. Litt. 15.
.{FE}
did
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did defcend from king Edward the fixth to queen Mary, and from her to queen Elizabeth, who were refpectively of the half blood to each other. For, the royal pedigree being always a matter of fufficient notoriety, there is no occafion to call in the aid of this prefumptive rule of evidence, to render probable the defcent from the royal ftock ; which was formerly king William the Norman, and is now (by act of parliament ^f) the princefs Sophia of Hanover. Hence alfo it is, that in eftates-tail, where the pedigree from the firft donee muft be ftrictly proved, half blood is no impediment to the defcent ^g : becaufe, when the lineage is clearly made out, there is no need of this auxiliary proof. How far it might be defirable for the legiflature to give relief, by amending the law of defcents in this fingle inftance, and ordaining that the half blood might inherit, where the eftate notorioufly defcended from it's own proper anceftor, but not otherwife ; or how far a private inconvenience fhould be fubmitted to, rather than a long eftablifhed rule fhould be fhaken ; it is not for me to determine.
The rule then, together with it's illuftration, amounts to this : that, in order to keep the eftate of John Stiles as nearly as poffible in the line of his purchafing anceftor, it muft defcend to the iffue of the neareft couple of anceftors that have left defcendants behind them ; becaufe the defcendants of one anceftor only are not fo likely to be in the line of that purchafing anceftor, as thofe who are defcended from two.
But here another difficulty arifes. In the fecond, third, fourth, and every fuperior degree, every man has many couples of anceftors, increafing to the diftances in a geometrical progreffion upwards ^h, the defcendants of all which refpective couples are (reprefentatively) related to him in the fame degree. Thus in the fecond degree, the iffue of George and Cecilia Stiles and of Andrew and Efther Baker, the two grandfires and grand-
.{FS}
^f12 Will. III. C. 2.
^gLitt. §. 14, 15.
^hSee pag. 204.
.{FE}

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Ff

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mothers of John Stiles, are each in the fame degree of propinquity ; in the third degree, the refpective iffues of Walter and Chriftian 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 themfelves the next kindred of the whole blood to John Stiles. To which therefore of thefe anceftors muft we firft refort, in order to find out defcendants to be preferably called to the inheritance ? In anfwer to this, and to avoid the confufion and uncertainty that muft arife between the feveral ftocks, wherein the purchafing anceftor may be fought for,
VII.The feventh and laft rule or canon is, that in collateral inheritances the male ftocks fhall be preferred to the female ; (that is, kindred derived from the blood of the male anceftors fhall be admitted before thofe from the blood of the female) ------- unlefs where the lands have, in fact, defcended from a female.
Thus the relations on the father's fide are admitted in infinitum, before thofe on the mother's fide are admitted at all ^I ; and the relations of the father's father, before thofe of the father's mother ; and fo on. And in this the Englifh law is not fingular, but warranted by the examples of the Hebrew and Athenian laws, as ftated by Selden ^k, and Petit ^l ; though among the Greeks, in the time of Hefiod ^m, when a man died without wife or children, all his kindred (without any diftinction) divided his eftate among them. It is likewife 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 Juftinian ⁿ abolifhed all diftinction between them. It is alfo conformable to the cuftomary law of Normandy ^o, which indeed in moft refpects agrees with our law of inheritance.
.{FS}
^ILitt. §. 4.
^kde fucc. Ebracor. c. 12.
^lLL. Attic. l. 1. t. 6.
^m(Symbol). 606.
ⁿNov. 118.
^oGr. Couftum. c. 25.
.{FE}
However
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However, I am inclined to think, that this rule of our laws does not owe it's immediate original to any view of conformity to thofe which I have juft now mentioned ; but was eftablifhed in order to effectuate and carry into execution the fifth rule or canon before laid down ; that every heir muft be of the blood of the firft purchafor. For, when fuch firft purchafor was not eafily to be difcovered after a long courfe of defcents, the lawyers not only endeavoured to inveftigate him by taking the next relation of the whole blood to the perfon laft in poffeffion ; but alfo, confidering that a preference had been given to males (by virtue of the fecond canon) through the whole courfe of lineal defcent from the firft purchafor to the prefent time, they judged it more likely that the lands fhould have defcended to the laft tenant from his male than from his female anceftors ; from the father (for inftance) 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 expreffion) through the male line ; and gave it to the next relations on the fide of the father, the father's father, and fo upwards ; imagining with reafon that this was the moft probable way of continuing it in the line of the firft purchafor. 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 firft inftance or direct lineal fucceffion, had no reafon for preferring them in the tranfverfe collateral one : upon which account this preference was very wifely abolifhed by Juftinian.
That this was the true foundation of the preference of the agnati or male ftocks, in our law, will farther appear if we confider, that, whenever the lands have notorioufly defcended to a man from his mother's fide, this rule is totally reverfed, and no relation of his by the father's fide, as fuch, can ever be admitted to them ; becaufe he cannot poffibly be of the blood of the firft purchafor. And fo, e converfo, if the lands defcended from the father's fide, no relation of the mother, as fuch, fhall ever in-

Ff2

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herit. So alfo, if they in fact defcended to John Stiles from his father's mother Cecilia Kempe ; here not only the blood of Lucy Baker his mother, but alfo of George Stiles his father's father, is perpetually excluded. And, in like manner, if they be known to have defcended from Frances Holland the mother of Cecilia Kempe, the line not only of Lucy Baker, and of George Stiles, but alfo of Luke Kempe the father of Cecilia, is excluded. Whereas when the fide from which they defcended is forgotten, or never known, (as in the café of an eftate newly purchafed to be holden ut feudum antiquum) here the right of inheritance firft runs up all the father's fide, with preference to the male ftocks in every inftance ; and, if it finds no heirs there, it then, and then only, reforts to the mother's fide ; leaving no place untried, in order to find heirs that may by poffibility be derived from the original purchafor. The greateft probability of finding fuch was among thofe defcended from the male anceftors ; but, upon failure of iffue there, they may poffibly be found among thofe derived from the females.
This I take to be the true reafon of the conftant preference of the agnatic fucceffion, or iffue derived from the male anceftors, though all the ftages of collateral inheritance ; as the ability for perfonal fervice was the reafon for preferring the males at firft in the direct lineal fucceffion. We fee clearly, that, if males had been perpetually admitted, in utter exclufion of females, the tracing the inheritance back through the male line of anceftors muft at laft have inevitably brought us up to the firft purchafor : but, as males have not been perpetually admitted, but only generally preferred ; as females have not been utterly excluded, but only generally poftponed to males ; the tracing the inheritance up through the male ftocks will not give us abfolute demonftration, but only a ftrong probability, of arriving at the firft purchafor ; which, joined with the other probability, of the wholenefs or entirety of blood, will fall little fhort of a certainty.
Before
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Before we conclude this branch of our enquiries, it may not be amifs to exemplify thefe rules by a fhort fketch of the manner in which we muft fearch for the heir of a perfon, as John Stiles, who dies feifed of land which he acquired, and which therefore he held as a feud of indefinite antiquity ^p.
In the firft place fucceeds the eldeft fon, Matthew Stiles, or his iffue : (n^o i.) ---- if his line be extinct, then Gilbert Stiles and the other fons, refpectively, in order of birth, or their iffue : (n^o 2.) ---- in default of thefe, all the daughters together, Margaret and Charlotte Stiles, or their iffue. (n^o 3.) ---- On failure of the defcendants of John Stiles himfelf, the iffue of Geoffrey and Lucy Stiles, his parents, is called in : viz. firft, Francis Stiles, the eldeft brother of the whole blood, or his iffue : (n^o 4.) ---- then Oliver Stiles, and the other whole brothers, refpectively, in order of birth, or their iffue : (n^o 5.) ---- then the fifters of the whole blood, all together, Bridget and Alice Stiles, or their iffue. (n^o 6.) ---- In defect of thefe, the iffue of George and Cecilia Stiles, his father's parents ; refpect being fill had to their age and fex : (n^o 7.) ---- then the iffue of Walter and Chriftian Stiles the parents of his paternal grandfather : (n^o 8.) ---- then the iffue of Richard and Anne Stiles, the parents of his paternal grandfather's father : (n^o 9) ---- and fo on in the paternal grandfather's paternal line, or blood of Walter Stiles, in infinitum. In defect of thefe, the iffue of William and Jane Smith, the parents of his paternal grandfather's mother : (n^o 10.) ---- and fo on in the paternal grandfather's maternal line, or blood of Chriftian Smith, in infinitum ; till both the immediate bloods of George Stiles, the paternal grandfather, are fpent. ---- Then we muft refort to the iffue of Luke and Frances Kempe, the parents of John Stiles's paternal grandmother : (n^o 11.) ---- then to the iffue of Thomas and Sarah Kempe, the parents of his paternal grandmother's father : (n^o 12.) ---- and fo on in the paternal grandmother paternal line, or blood of Luke Kempe, in infinitum. ----
.{FS}
^pSee the table of defcents annexed.
.{FE}
In
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In default of which, we muft call in the iffue of Charles and Mary Holland, the parents of his paternal grandmother's mother : (n^o 13) ---- and fo 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 alfo fpent, ---- Whereby the paternal blood of John Stiles entirely failing, recourfe muft then, and not before, be had to his maternal relations ; or the blood of the Bakers, (n^o 14, 15, 16.) Willis's, (n^o 17.) Thorpes, (n^o 18, 19.) and Whites ; (n^o 20.) in the fame regular fucceffive order as in the paternal line.
The ftudent fhould however be informed, that the clafs, n^o 10, would be poftponed to n^o II, in confequence of the doctrine laid down, arguendo, by juftice Manwoode, in the café of Clere and Brooke ^q ; from whence it is adopted by lord Bacon ^r, and fir Matthew Hale^s. And yet, notwithftanding thefe refpectable authorities, the compiler of this table hath ventured to give the preference therein to n^o 10 before n^o 11 ; for the following reafons :1.Becaufe this point was not the principal queftion in the café of Clere and Brooke ; but the law concerning it is delivered obiter only, and in the courfe of argument, by juftice Manwoode ; though afterwards faid to be confirmed by the three other juftices in feparate, extrajudicial, conferences with the reporter.2.Becaufe the chief-juftice, fir James Dyer, in reporting the refolution of the court in what feems to be the fame café ^t, takes no notice of this doctrine.3.Becaufe it appears, from Plowden's report, that very many gentlemen of the law were diffatisfied with this pofition of juftice Manwoode.4.Becaufe the pofition itfelf deftroys the otherwife entire and regular fymmetry of our legal courfe of defcents, as is manifeft by infpecting the table ; and deftroys alfo that conftant preference of the male ftocks in the law of inheritance, for which an additional reafon is before given, befides the mere dignity of blood.5.Becaufe it tntroduces all that uncertainty and contradiction, which is pointed
.{FS}
^qPlowd. 450.
^rElem. c. 1.
^sH. C. L. 240, 244.
^tDyer. 314.
.{FE}
out
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Ch. 14.
out by an ingenious author ^u ; and eftablifhes a collateral doctrine, incompatible with the principal point refolved in the café of Clere andBrooke, viz. the preference of n^o 11 to n^o 14. And, though that learned writer propofes to refcind the principal point then refolved, 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 refolved at all. 6.Becaufe by the reafon that is given for this doctrine, in Plowden, Bacon, and Hale, (viz. that in any degree, paramount the firft, the law refpecteth proximity, and not dignity of blood) n^o 18 ought alfo to be preferred to n^o 16 ; which is directly contrary to the eighth rule laid down by Hale himfelf ^w.7.Becaufe this pofition feems to contradict the allowed doctrine of fir Edward Coke ^x ; who lays it down (under different names) that the blood of the Kempes (alias Sandies) fhall 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 n^o 9 and n^o 10 are extinct. Wherefore n^o 11 (being the blood of the Kempes) ought not to inherit till then.8.Becaufe in the café, Mich. 12 Edw. IV. 14^y. (much relied on in that of Clere and Brooke) it is laid down as a rule, that “ceftuy, que “doit inheriter al pere, doit inheriter al fits.” And fo fir Matthew Hale ^z fays, “ that though the law excludes the father from in- “heriting, yet it fubftitutes and directs the defcent, as it fhould “ have been, had the father inherited.” Now it is fettled, by the refolution in Clere and Brooke, that n^o 10 fhould have inherited to Geoffrey Stiles, the father, before n^o 11 ; and therefore n^o 10 ought alfo to be preferred in inheriting to John Stiles, the fon.
In café John Stiles was not himfelf the purchafor, but the eftate in fact came to him by defcent from his father, mother, or any higher anceftor, there is this difference ; that the blood of that line of anceftors, from which it did not defcend, can never
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^uLaw of inheritances. 2^d edit. Pag. 30, 38, 61, 62, 66.
^wHift. C. L. 247.
^xCo. Litt. 12. Hawk. Abr. In loc.
^yFitzh. Abr. Tit. Difcent. 2. Bro. Abr. T. difcent. 3.
^zHift. C. L. 243.
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inherit
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The Rights of Things.
Book II.
inherit. Thus, if it defcended from Geoffrey Stiles, the father the blood of Lucy Baker, the mother, is perpetually excluded : and fo, vice verfa, if it defcended from Lucy Baker, it cannot defcend to the blood of Geoffrey Stiles. This, in either café, cuts off one half of the table from any poffible fucceffion. And farther, if it can be fhewn to have defcended from George Stiles, this cuts off three fourths ; for now the blood, not only of Lucy Baker, but alfo of Cecilia Kempe, is excluded. If, laftly, it defcended from Walter Stiles, this narrows the fucceffion ftill more, and cuts off feven eighths of the table ; for now, neither the blood of Lucy Baker, nor of Cecilia Kempe, nor of Chriftian Smith, can ever fucceed to the inhlike rule will hold upon defcents from any other anceftors.
The ftudent fhould bear in mind, that, during this whole procefs, John Stiles is the perfon fuppofed to have been laft actually feifed of the eftate. For if ever it comes to veft in any other perfon, as heir to John Stiles, anew order of fucceffion muft be obferved upon the death of fuch heir ; fince he, by his own feifin, now becomes himfelf an anceftor, or ftipes, and muft be put in the place of John Stiles. The figures therefore denote the order, in which the feveral claffes would fucceed to John Stiles, and not to each other : and, before we fearch for an heir in any of the higher figures, (as n^o 8.) we muft be firft affured thatall the lower claffes (from n^o 1 to 7.) were extinct, at John Stiles's deceafe.