the history of the common law of england-第29部分
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onibus apud Hebraeos； has given us an excellent Account； as well out of the Holy Text as out of the Comments of the Rabins； or Jewish Lawyers； touching the same； which you may see at large in the 5th； 6th； 7th； 12th and 13th Chapters of that Book； and which； for so much thereof as concerns my present Purpose； I shall briefly comprise under the Eight following Heads； viz。 First； That in the Descending Line； the Descent or Succession was to all the Sons； only the eldest Son had a double Portion to any one of the rest； viz。 If there were three Sons； the Estate was to be divided into four Parts； of which the eldest was to have two Fourth Parts； and the other two Sons were to have one Fourth Part each。 Secondly； If the Son died in his Father's Life…time； then the Grandson； and so in lnfinitum； succeeded in the Portion of his Father； as if his Father had been in Possession of it； according to the Jus Representationis now in Use here。 Thirdly； The Daughter did not succeed in the Inheritance of the Father as long as there were Sons； or any Descendants from Sons in Being； but if any of the Sons died in the Life…time of his Father having Daughters； but without Sons； the Daughters succeeded in his Part as if he himself had been Possessed。 Fourthly； And in Case the Father left only Daughters and no Sons； the Daughters equally succeeded to their Father as in Copartnership； without any Prelation or Preference of the eldest Daughter to two Parts； or a double Portion。 Fifthly； But if the son had purchased an Inheritance and died without Issue； leaving a Father and Brothers； the Inheritance of such Son so dying did not descend to the Brothers； （unless in Case of the next Brother's taking to Wife the Deceased's Widow to raise up Children to his deceased Brother） but in such Case the Father inherited to such Son entirely。 Sixthly； But if the Father in that Case was dead； then it came to the Brothers； as it were as Heirs to the Father； in the same Manner as if the Father had been actually Possess'd thereof； and therefore the Father's other Sons and their Descendants in Infinitum succeeded； but yet especially； and without any double Portion to the eldest； because tho' in Truth the Brothers succeeded as it were in Right of Representation from the Father； yet if the Father died before the Son； the Descent was de Facto immediately from the Brother deceased to the other Brothers； in which Case their Law gave not a double Portion； and in Case the Father had no Sons or Descendants from them； then it descended to all the Sisters。 Seventhly； If the Son died without Issue； and his Father or any Descendants from him were extant； it went not to the Grandfather or his other Descendants； but if the Father was dead without Issue； then it descended to the Grandfather； and if he were dead； then it went to his Sons and their Descendants； and for want of them； then to his Daughters or their Descendants； as if the Grandfather himself had been actually possess'd and had died； and so miutatis mutandis to the Proavus； Abavus； Atavus； &c。 and their Descendants。 Eighthly； But the Inheritance of the Son never resorted to the Mother； or to any of her Ancestors； but both she and they were totally excluded from the Succession。 The double Portion therefore that was Jus Primogeniturae； never took Place but in that Person that was the Primogenitus； of him from whom the inheritance immediately descended； or him that represented him； as if A。 had two Sons； B。 and C。 and B。 the eldest had two Sons； D。 and E。 and then B。 died； whereas B。 should have had a double Portion； viz。 two Thirds in Case he had survived his Father； but now this double Portion shall be equally divided between D。 and E。 and D。 shall not have two Thirds of the two Thirds that descended from A。 to them。 Vide Selden； ut supra。 Thus much of the Laws or Rules touching Descents among the Jews。 Among the Graecians； the Laws of Descents in some Sort resemble those of the Jews； and in some Things they differed。 Vide Petit's Leges Attica； Cap。 I。 Tit。 6。 De Testamentis & Hereditario Jure； where the Text of their Law runs thus； viz。 Omnes legitimi Filii Haereditatem Paternam ex aequo inter se Haeriscunto； si quis intestatus moritur relictis Filiabus qui eas in Uxores ducunt haeredes sunto； si nullae supersint； hi ab intestato haereditatem cernunto： Et primo quidem Fratres defuncti Germani； & legitimi Fratrum Filii haereditatem simil adeunto； si nulli Fratres aut Fratrum Filii supersint； iis geniti eadem Lege haereditatem cernunto： Masculi autem iis geniti etiam si remotiori cognationis sint Gradu； praeferuntor； si nulli supersint； Paterni proximi； ad sobrinorum usque Filios； Materni defuncti propinqui simili Lege Haereditatem adeunto； si e neutra cognatione supersint intra definitum Gradum proximus cognatus Paternus； addito Notho Nothave； superstite Legitima Filia Nothus Haereditatem Patris ne adito。 This Law is very obscure； but the Sense thereof seems to be briefly this； viz。 That all the Sons equally shall inherit to the Father； but if he have no Sons； then the Husbands of the Daughters； and if he have no Children； then his Brothers and their Children； and if none； than his next Kindred on the Part of his Father； preferring the Males before the Females； and if none of the Father's Line； ad Sobrinorum usque Filios； then to descend to the Mother's Line。 Vide Petit's Gloss thereon。 Among the Romans it appears； that the Laws of Successions or Descents did successively vary； for the Laws of the Twelve Tables did exclude the Females from Inheriting； and had many other Streightnesses and Hardships which were successively remedied： First； by the Emperor Claudius； and after him by Adrian； in his Senatus Consultus Tertullianus； and after him hy Justinian in his Third Institutes； Tit。 De Haereditatibus quae ab intestato deseruntur； and the two ensuing Titles。 And again； all this was further explained and settled by the Novel Constitutions of the said Justinian； stiled the Authenticae Novellae； cap。 18。 De Haereditatibus ab intestato venientibus & agnatorum Jiure sublato。 Therefore omitting the large Inquiry into the Successive Changes of the Roman Law in this particular； I shall only set down how； according to that Constitution； the Roman Law stands settled therein。 Descents or Successions from any Person are of Three Kinds； viz。 1st； In the Descending Line。 2dly； The Ascending Line。 3dly； The Collateral Line； and this latter is either in Agnatos a Parte Patris； or in Cognatos a Parte Matris。 1。 ln the Descending Line； These Rules are by the Roman Law directed； viz。 1。 The Descending Line； （whether Male or Female； whether immediate or remote） takes Place； and prevents the Descent or Succession Ascending or Collateral in infinitum。 2。 The remote Descents of the Descending Line succeed in Stirpem； i。e。 in that Right which his Parent should have had。 3。 This Descent or Succession is equal in all the Daughters； all the Sons； and all the Sons and Daughters； without preferring the Male before the Female； so that if the common Ancestor had three Sons and three Daughters； each of them had a sixth Part； and if one of them had died in the Life of the Father； having three Sons and three Daughters； the sixth Part that belonged to that Party should have been divided equally between his or her six Children； and so in in finitum in the Descending Line。 2。 In the Ascending Line； there are these two Rules； viz。 1。 If the Son dies without Issue； or any descending from him； having a Father and a Mother living； both of them shall equally succeed to the Son； and prevent all others in the Collateral Line； except Brothers and Sisters； and if only a Father； or only a Mother； he or she shall succeed alone。 2。 But if the Deceased leaves a Father and a Mother； with a Brother and a Sister； ex utrisque Parentibus conjuncti； they all Four shall equally succeed to the Son by equal Parts without Preference of the Males。 3。 In the Collateral Line； （i。e。 where the Person dies without Father or Mother； Son or Daughter； or any descending from them in the Right Line） the Rules are these； viz。 1。 The Brothers and Sisters； ex utrisque Parentibius conjuncti； and the immediate Children of them； shall exceed equally without Preference of either Sex； and the Children from them shall succeed in stirpes； as if there be a Brother and Sister； and the Sister dies in the Life of the Descendant leaving one or more Children； all such Children shall succeed in the Moiety that should have come to their deceased Mother； had she survived。 2。 But if there be no Brothers or Sisters； ex utrisque Parentibus conjuncti； nor any of their immediate Children； then the Brothers and Sisters of the half Blood and their immediate Children shall succeed in Stirpes to the Deceased； without any Prerogative to the Male。 3。 But if there be no Brothers or Sisters of the wbole or half Blood； nor any of their immediate Children （for the Grandchildren are not provided for by the Law） then the next Kindred are called to the Inheritance。 （But by the Author's Leave； I think the Grandchildren are impliedly provided for； as they succeed their Father or Mother Jure representationis。） 4。 And if the next Kindred be in an equal Degree； whether on the Part of the Father as Agnati； or on the Part of the Mother as Cognati； then they are equally called to the Inheritance； and succeeded in Capita； and not in Stirpes。 Thus far of the settled Laws of the Jews； Greeks； and Romans； but the Particular or Municipal Laws and Customs of almost every Country derogate from those Laws； and direct Successions in a much different Way。 For Instance。 By the Customs of Lombardy； according to which the Rules of the Feuds； both in their Descents and in other Things； are much directed； their Descents are in a much different Manner； viz。 Leges Feiudarum； Lib。 I。 Tit。 I。 If a Feud be granted to one Brother who dies without Issue； it descends not to his other Brother unless it be specially provided for in the first Infeudation： If the Donee die
