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the history of the common law of england-及30何蛍

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o his other  Brother unless it be specially provided for in the first  Infeudation�此�If the Donee dies�察�having Issue Sons and Daughters�察 �it descends only to the Sons�察�whereas by the Roman Law it  descends to both�此�The Brother succeeds not to the Brother unless  specially provided for�察�& Ibid。 Tit。 50。 The Ascendants succeed  not�察�but only the Descendants�察�neither does a Daughter succeed  nisi ex Pacto�察�vel nisi sit Feodum Faemineum If we come nearer  Home to the Laws of Normandy�察�Lands there are of Two Kinds�察�viz。  Partible�察�and not Partible�察�the Lands that are partible�察�are  Valvasories�察�Burgages�察�and such like�察�which are much of the  Nature of our Socage Lands�察�these descend to all the Sons�察�or to  all the Daughters�此�Lands not partible�察�are Fiefs and Dignities�察 �they descend to the eldest Son�察�and not to all the Sons�察�but if  there be no Sons�察�then to all the Daughters�察�and become partible。        The Rules and Directions of their Descents are as follow�察 �viz。      1。 For want of Sons or Nephews�察�it descends to the Daughters�察 �if there be no Sons or Descendants from them�察�it goes to  Brothers�察�and for want of Brothers�察�to Sisters�察。�observing as  before the Difference between Lands partible and not partible��  and accordingly the Descent runs to the Posterity of Brothers to  the seventh Degree�察�and if there be no Brothers nor Sisters�察�nor  any Descendants from them within the Seventh Degree�察�it descends  to the Father�察�and if the Father be dead�察�then to the Uncles and  Aunts and their Posterity�察。�as above is said in the Case of  Brothers and Sisters�� and if there be none�察�then to the  Grandfather。      So that according to their Law�察�the Father is postponed to  the Brother and Sister�察�and their Issues�察�but is preferred before  the Uncle�此�Tho' according to the Jewish Law�察�the Father is  preferred before the Brother�察�by the Roman Law�察�he succeeds  together equally with the Brother�察�but by the English Law�察�the  Father cannot take from his Son by an immediate Descent�察�but may  take as Heir to his Brother�察�who was Heir to his Son by  Collateral Descent。      2。 If Lands descended from the Part of the Father�察�they could  never resort by a Descent to the Line of the Mother�察�but in Case  of Purchases by the Son who died without Issue�察�for want of Heirs  of the Part of the Father�察�it descended to the Heirs of the Part  of the Mother according to the Law of England。      3。 The Son of the eldest Son dying in the Life of the Father�察 �is preferred before a younger Son surviving his Father as the Law  stands here now settled�察�tho' it had some Interruption�察�4  Johannis。      4。 On Equality of Degrees in Collateral Descents�察�the Male  Line is preferred before the Female。      5。 Altho' by the Civil Law�察�Fratres ex utroque Parente  conjuncti Praeferuntur Fratribus consanguineis tantum vel  uterinis�察�yet it should seem by the Contumier of Normandy�察 �Fratres consanguineis ei ex eodem Patre sed diversa Matre�察�shall  take by Descent together with the Brothers�察�ex utroque conjuncti�察 �upon the Death of any such Brothers。 But Quere hereof�察�for this  seems a Mistake�察�for�察�as I take it�察�the half Blood hinders the  Descent between Brothers and Sisters by their Laws as well as  ours。      6。 Leprosy was amongst them an Impediment of Succession�察�but  then it seems it ought to be first solemnly adjudged so by the  Sentence of the Church。      Upon all this�察�and much more that might be observed upon the  Customs of several Countries�察�it appears�察�That the Rules of  Successions�察�or hereditary Transmissions�察�have been various in  several Countries according to their various Laws�察�Customs�察�and  Usages。      And now�察�after this brief Survey of the Laws and Customs of  other Countries�察�I come to the Laws and Usages of England in  relation to Descents�察�and the Growth that those Customs  successively have had�察�and whereunto they are now arrived。        First�察�Touching hereditary Successions�此�It seems�察�that  according to the ancient British Laws�察�the eldest Son inherited  their Earldoms and Baronies�察�for they had great Dignities and  Jurisdictions annex'd to them�察�and were in Nature of  Principalities�察�but that their ordinary Freeholds descended to  all their Sons�察�and this Custom they carried with them into  Wales�察�whither they wvere driven。 This appears by Statutum  Waltiae 12 E。 I。 and which runs thus�察�viz。        Aliter usitatum est in Wallia quam in Anglia quoad  successionem haereditatis�察�eo quod haereditas partibilis est  inter haeredes Masculos�察�& a tempore cujus non extiterit Memoria  partibilis exitit。 Dominus Rex non vult quod consuetudo illa  abrogetur�此�sed quod haereditates remaneant partibiles�察�inter  consimiles haeredes sicut esse Consueverunt�察�& fiat partitio  illius sicut fieri consuevit。 Hoc excepto Bastardi non habeant de  caetero haereditates & etiam quod non habeant purpartes�察�cum  legitimis nec sine legitimis。        Whereupon Three Things are observable�察�viz。 1st�察�That at this  Time the hereditary Succession of the eldest Son was then known  to be the common and usual Law in England。 2dly�察�That the  Succession of all the Sons was the ancient customary Law among  the British in Wales�察�which by this Statute was continued to  them。 3dly�察�That before this Time�察�Bastards were admitted to  inherit in Wales as well as the Legitimate Children�察�which Custom  is thereby abrogated�察�and although we have but few Evidences  touching the British Laws before their Expulsion hence into  Wales�察�yet this Usage in Wales seems sufficiently to evidence  this to have been the ancient British Law。      Secondly�察�As to the Times of the Saxons and Danes�察�their Laws  collected hy Brompton and Mr Lambard�察�speak not much concerning  the Course of Descents�察�yet it seems that commonly Descents of  their ordinary Lands at least�察�except Baronies and Royal  Inheritances�察�descended also to all the Sons�此�For amongst the  Laws of King Canutus�察�in Mr Lambard is the Law�察�viz。 No。 68。  ;Sive quis incuria five Morte repentina fuerit intestato mortuus�察 �Dominus tamen nullam rerum suarum Partem ��praeter eam quae jure  debetur Hereoti nomine�� sibi assumito。 Verum eas Judicio suo  Uxori�察�Liberis & cognatione proximis juste ��pro suo cuique jure��  distributio。; Upon which Law�察�we may observe these five things�察 �viz。      1st。 That the Wife had a Share�察�as well of the Lands for her  Dower�察�as of the Goods。      2dly�察�That in reference to hereditary Successions�察�there then  seem'd to be little Difference between Lands and Goods�察�for this  Law makes no Distinction。      3dly�察�That there was a Kind of settled Right of Succession�察 �with Reference to Proximity and Remoteness of Blood�察�or Kin�察�Et  cognatione proximis pro suo cuique jure。      4thly�察�That in Reference to Children�察�they all seem'd to  succeed alike�察�without any Distinction between Males and Females。      5thly�察�That yet the Ancestor might dispose of by his Will as  well Lands as Goods�察�which Usage seems to have obtained here unto  the Time of Hen。 2 as will appear hereafter。 Vide Glanville。      Thirdly�察�It seems that�察�until the Conquest�察�the Descent of  Lands was at least to all the Sons alike�察�and for ought appears  to all the Daughters also�察�and that there was no Difference in  the hereditary Transmission of Lands and Goods�察�at least in  Reference to the Children�此�This appears by the Laws of King  Edward the Confessor�察�confirm'd by King William I and recited in  Mr Lambard�察�Folio 167。 as also by Mr Selden in his Notes upon  Eadmerus�察�viz。 Lege 36 Tit。 De Intestatorum Bonis�察�Pag。 184。 ;Si  quis Intestatus obierit�察�Liberi ejus Haereditatem aequaliter  divident。;      But this equal Division of Inheritances among all the  Children was found to be very inconvenient�此�For�察     �1st�察�It weakened the Strength of the Kingdom�察�for by frequent  parcelling and subdividing of Inheritances�察�in Process of Time  they became so divided and crumbled�察�that there were few Persons  of able Estates left to undergo publick Charges and Offices。      2dly�察�It did by Degrees bring the Inhabitants to a low Kind  of Country living�察�and Families were broken�察�and the younger  Sons�察�which had they not had those little Parcels of Land to  apply themselves to�察�would have betaken themselves to Trades�察�or  to Civil or Military�察�or Ecclesiastical Employments�察�neglecting  those Opportunities�察�wholly apply'd themselves to those small  Divisions of Lands�察�whereby they neglected the Opportunities of  greater Advantage of enriching themselves and the Kingdom。      And therefore King William I having by his Accession to the  Crown gotten into his Hands the Possessions and Demesns of the  Crown�察�and also very many and great Possessions of those that  oppos'd him�察�or adhered to Harold�察�disposed of those Lands or  great Part of them to his Countrymen�察�and others that adhered to  him�察�and reserved certain honorary Tenures�察�either by Baronage�察 �or in Knights´Service or Grand Serjeancy�察�for the Defence of the  Kingdom�察�and possibly also�察�even at the Desire of many of the  Owners�察�changed their former Tenures into Knights´Service�察�which  Introduction of new Tenures was nevertheless not done without  Consent of Parliament�察�as appears by the additional Laws before  mentioned�察�that King William made by Advice of Parliament�察 �mentioned by Mr Selden in his Notes on Eadmerus�察�Page 191�察 �amongst which this was one�察�viz。        Statuimus etiam & firmiter praecipimus ut omnes Comites  Barones Milites & Servientes & universi liberi Homines totius  Regni nostri habeant & teneant se semper in Armis & in Equis ut  decet & oportet�察�& quod sint semper prompti & bene parati ad  Servitium suum integrum nobis explendendum & peragendum�察�cum  semper opus fuerit secundum quod nobis de Feodis debent &  tenentur Tenementis suis de Jure facere & sicut illis statuimus  per Commune Concilium totius Regni nostri�察�Et illis dedimus &  concessimus in Feodo Jure haereditario。        Whereby it appears�察�that there were two Kinds of Military  Provisions�察�one that was set upon all Freeholds by common Consent  of Parliament�察�and which was usually called Assisa Armorum�察�and  another that was Conventional and by Tenure�察�upon the Infeudation  of the Tenant�察�and which was usually called Knights Service�察�and  sometimes Royal�察�sometimes Foreign Service�察�and sometimes  Servitium Loricae。      And hence it came to pass�察�that not only

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