the history of the common law of england-第30部分
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o his other Brother unless it be specially provided for in the first Infeudation： If the Donee dies； having Issue Sons and Daughters； it descends only to the Sons； whereas by the Roman Law it descends to both： The Brother succeeds not to the Brother unless specially provided for； & Ibid。 Tit。 50。 The Ascendants succeed not； but only the Descendants； neither does a Daughter succeed nisi ex Pacto； vel nisi sit Feodum Faemineum If we come nearer Home to the Laws of Normandy； Lands there are of Two Kinds； viz。 Partible； and not Partible； the Lands that are partible； are Valvasories； Burgages； and such like； which are much of the Nature of our Socage Lands； these descend to all the Sons； or to all the Daughters： Lands not partible； are Fiefs and Dignities； they descend to the eldest Son； and not to all the Sons； but if there be no Sons； then to all the Daughters； and become partible。 The Rules and Directions of their Descents are as follow； viz。 1。 For want of Sons or Nephews； it descends to the Daughters； if there be no Sons or Descendants from them； it goes to Brothers； and for want of Brothers； to Sisters； （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； and if there be no Brothers nor Sisters； nor any Descendants from them within the Seventh Degree； it descends to the Father； and if the Father be dead； then to the Uncles and Aunts and their Posterity； （as above is said in the Case of Brothers and Sisters） and if there be none； then to the Grandfather。 So that according to their Law； the Father is postponed to the Brother and Sister； and their Issues； but is preferred before the Uncle： Tho' according to the Jewish Law； the Father is preferred before the Brother； by the Roman Law； he succeeds together equally with the Brother； but by the English Law； the Father cannot take from his Son by an immediate Descent； but may take as Heir to his Brother； who was Heir to his Son by Collateral Descent。 2。 If Lands descended from the Part of the Father； they could never resort by a Descent to the Line of the Mother； but in Case of Purchases by the Son who died without Issue； for want of Heirs of the Part of the Father； 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； is preferred before a younger Son surviving his Father as the Law stands here now settled； tho' it had some Interruption； 4 Johannis。 4。 On Equality of Degrees in Collateral Descents； the Male Line is preferred before the Female。 5。 Altho' by the Civil Law； Fratres ex utroque Parente conjuncti Praeferuntur Fratribus consanguineis tantum vel uterinis； yet it should seem by the Contumier of Normandy； Fratres consanguineis ei ex eodem Patre sed diversa Matre； shall take by Descent together with the Brothers； ex utroque conjuncti； upon the Death of any such Brothers。 But Quere hereof； for this seems a Mistake； for； as I take it； 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； but then it seems it ought to be first solemnly adjudged so by the Sentence of the Church。 Upon all this； and much more that might be observed upon the Customs of several Countries； it appears； That the Rules of Successions； or hereditary Transmissions； have been various in several Countries according to their various Laws； Customs； and Usages。 And now； after this brief Survey of the Laws and Customs of other Countries； I come to the Laws and Usages of England in relation to Descents； and the Growth that those Customs successively have had； and whereunto they are now arrived。 First； Touching hereditary Successions： It seems； that according to the ancient British Laws； the eldest Son inherited their Earldoms and Baronies； for they had great Dignities and Jurisdictions annex'd to them； and were in Nature of Principalities； but that their ordinary Freeholds descended to all their Sons； and this Custom they carried with them into Wales； whither they wvere driven。 This appears by Statutum Waltiae 12 E。 I。 and which runs thus； viz。 Aliter usitatum est in Wallia quam in Anglia quoad successionem haereditatis； eo quod haereditas partibilis est inter haeredes Masculos； & a tempore cujus non extiterit Memoria partibilis exitit。 Dominus Rex non vult quod consuetudo illa abrogetur： sed quod haereditates remaneant partibiles； inter consimiles haeredes sicut esse Consueverunt； & fiat partitio illius sicut fieri consuevit。 Hoc excepto Bastardi non habeant de caetero haereditates & etiam quod non habeant purpartes； cum legitimis nec sine legitimis。 Whereupon Three Things are observable； viz。 1st； That at this Time the hereditary Succession of the eldest Son was then known to be the common and usual Law in England。 2dly； That the Succession of all the Sons was the ancient customary Law among the British in Wales； which by this Statute was continued to them。 3dly； That before this Time； Bastards were admitted to inherit in Wales as well as the Legitimate Children； which Custom is thereby abrogated； and although we have but few Evidences touching the British Laws before their Expulsion hence into Wales； yet this Usage in Wales seems sufficiently to evidence this to have been the ancient British Law。 Secondly； As to the Times of the Saxons and Danes； their Laws collected hy Brompton and Mr Lambard； speak not much concerning the Course of Descents； yet it seems that commonly Descents of their ordinary Lands at least； except Baronies and Royal Inheritances； descended also to all the Sons： For amongst the Laws of King Canutus； in Mr Lambard is the Law； viz。 No。 68。 〃Sive quis incuria five Morte repentina fuerit intestato mortuus； Dominus tamen nullam rerum suarum Partem （praeter eam quae jure debetur Hereoti nomine） sibi assumito。 Verum eas Judicio suo Uxori； Liberis & cognatione proximis juste （pro suo cuique jure） distributio。〃 Upon which Law； we may observe these five things； viz。 1st。 That the Wife had a Share； as well of the Lands for her Dower； as of the Goods。 2dly； That in reference to hereditary Successions； there then seem'd to be little Difference between Lands and Goods； for this Law makes no Distinction。 3dly； That there was a Kind of settled Right of Succession； with Reference to Proximity and Remoteness of Blood； or Kin； Et cognatione proximis pro suo cuique jure。 4thly； That in Reference to Children； they all seem'd to succeed alike； without any Distinction between Males and Females。 5thly； That yet the Ancestor might dispose of by his Will as well Lands as Goods； which Usage seems to have obtained here unto the Time of Hen。 2 as will appear hereafter。 Vide Glanville。 Thirdly； It seems that； until the Conquest； the Descent of Lands was at least to all the Sons alike； and for ought appears to all the Daughters also； and that there was no Difference in the hereditary Transmission of Lands and Goods； at least in Reference to the Children： This appears by the Laws of King Edward the Confessor； confirm'd by King William I and recited in Mr Lambard； Folio 167。 as also by Mr Selden in his Notes upon Eadmerus； viz。 Lege 36 Tit。 De Intestatorum Bonis； Pag。 184。 〃Si quis Intestatus obierit； Liberi ejus Haereditatem aequaliter divident。〃 But this equal Division of Inheritances among all the Children was found to be very inconvenient： For； 1st； It weakened the Strength of the Kingdom； for by frequent parcelling and subdividing of Inheritances； in Process of Time they became so divided and crumbled； that there were few Persons of able Estates left to undergo publick Charges and Offices。 2dly； It did by Degrees bring the Inhabitants to a low Kind of Country living； and Families were broken； and the younger Sons； which had they not had those little Parcels of Land to apply themselves to； would have betaken themselves to Trades； or to Civil or Military； or Ecclesiastical Employments； neglecting those Opportunities； wholly apply'd themselves to those small Divisions of Lands； 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； and also very many and great Possessions of those that oppos'd him； or adhered to Harold； disposed of those Lands or great Part of them to his Countrymen； and others that adhered to him； and reserved certain honorary Tenures； either by Baronage； or in Knights…Service or Grand Serjeancy； for the Defence of the Kingdom； and possibly also； even at the Desire of many of the Owners； changed their former Tenures into Knights…Service； which Introduction of new Tenures was nevertheless not done without Consent of Parliament； as appears by the additional Laws before mentioned； that King William made by Advice of Parliament； mentioned by Mr Selden in his Notes on Eadmerus； Page 191； amongst which this was one； 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； & quod sint semper prompti & bene parati ad Servitium suum integrum nobis explendendum & peragendum； 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； Et illis dedimus & concessimus in Feodo Jure haereditario。 Whereby it appears； that there were two Kinds of Military Provisions； one that was set upon all Freeholds by common Consent of Parliament； and which was usually called Assisa Armorum； and another that was Conventional and by Tenure； upon the Infeudation of the Tenant； and which was usually called Knights Service； and sometimes Royal； sometimes Foreign Service； and sometimes Servitium Loricae。 And hence it came to pass； that not only
