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the history of the common law of england-及29何蛍

弌傍�� the history of the common law of england 忖方�� 耽匈4000忖

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

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