the history of the common law of england-及32何蛍
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!!!!隆堋響頼��紗秘慕禰厮宴和肝写偬堋響��
Edw。 I's Time�察�when Britton and Fleta wrote�察�that there is very little Difference between them�察�as may easily appear by comparing Bracton ubi supra。 & Fleta�察�Lib。 5。 cap。 9。 Lib。 6。 cap。 1�察�2。 that the latter seem to be only Transcripts or Abstracts of the former。 Wherefore I shall set down the Substance of what both say�察�and thereby it will appear�察�that the Rules of Descents in Hen。 3。 and Edw。 I's Time were very much one。 First�察�At this Time the Law seems to be unquestionably settled�察�that the eldest Son was of Common Right Heir�察�not only in Cases of Knight Service Lands�察�but also of Socage Lands�察 。�unless there were a special Custom to the contrary�察�as in Kent and some other Places�� and so that Point of the Common Law was fully settled。 Secondly�察�That all the Descendants in infinitum�察�from any Person that had been Heir�察�if living�察�were inheritable Jure representationis�察�as�察�the Descendants of the Son�察�of the Brother�察 �of the Uncle�察�&c。 And also�察�Thirdly�察�That the eldest Son dying in the Life´time of the Father�察�his Son or Issue was to have the Preference as Heir to the Father before the younger Brother�察�and so the Doubt in Glanville's Time was settled�察�Glanvil。 Lib。 7�察 �cap。 3。 ;Cum quis autem moriatur habens Filium postnatum�察�& ex primogenito Filio praemortuo Nepotem�察�Magna quidem Juris dubitatio solet isse uter illorum preferendus fit alii in illa Successioni�察�scilicet�察�utrum Filius aut Nepos�拭─ �Fourthly�察�The Father�察�or Grandfather�察�could not by Law inherit immediately to the Son。 Fifthly�察�Leprosy�察�Though it were an Exception to a Plaintiff�察 �because he ought not to converse in the Courts of Law�察�as Bracton�察�Lib。 5。 cap。 20 yet we no where find it to be an Impediment of a Descent。 So that upon the whole Matter�察�for any Thing I can observe in them�察�the Rules of Descents then stood settled in all Points as they are at this Day�察�except some few Matters ��which yet soon after settled as they now stand�� viz。 First�察�That Impediment or Hindrance of a Descent from him that did Homage to him that received it�察�seems to have heen yet in Use�察�at least till 13 E。 I。 and in Fleta's Time�察�for he puts the Case and admits it。 Secondly�察�Whereas both Bracton and Fleta agree�察�that half Blood to him that is a Purchaser is an Impediment of a Descent from the Common Ancestor�察�half Blood is no Impediment。 As for Instance�察�A。 has Issue B。 a Son and C。 a Daughter by one Venter�察 �and D。 a Son by another Venter�此�If B。 purchases in Fee and dies without Issue�察�it shall descend to the Sister�察�and not to the Brother of the half Blood�察�but if the Land had descended from A。 to B。 and he had entred and died without Issue�察�it was a Doubt in Bracton and Britton's Time�察�whether it should go to the younger Son�察�or to the Daughter�拭�But the Law is since settled�察�that in both Cases it descends to the Daughter�察�Et。 seisina facit Stipitem & Primum Gradum。 Et Possessio Fratris de Feodo simplici facit Sororem esse haeredem。 Thus upon the whole it seems�察�That abating those small and inconsiderable Variances�察�the States and Rules of Descents as they stood in the Time of Hen。 3�察�or at least in the Time of Edw。 I were reduced to their full Complement and Perfection�察�and vary nothing considerably from what they are at this Day�察�and have continued ever since that Time。 I shall therefore set down the State and Rule of Descents in Fee´Simple as it stands at this Day�察�without meddling with Particular Limitations of Entails of Estates�察�which vary the Course of Descents in some Cases from the Common Rules of Descents of hereditary Successions�察�and herein we shall see what the Law has been and continued touching the same ever since Bracton's Time�察�who wrote in the Time of Hen。 3。 now above 400 Years since�察�and by that we shall see what Alterations the Succession of Time has made therein。 And now to give a short Scheme of the Rules of Descents�察�or hereditary Successions�察�of the Lands of Subjects as the Law stands at this Day�察�and has stood for above four hundred Years past�察�viz。 All possible hereditary Successions may be distinguished into these 3 Kinds�察�viz�察�either�察 �1st�察�In the Descending Line�察�as from Father to Son or Daughter�察�Nephew or Niece�察�i。e。 Grandson or Grandaughter。 Or�察 �2dly�察�ln the Collateral Line�察�as from Brother to Brother or Sister�察�and so to Brother and Sisters Children。 Or�察 �3dly�察�In an Ascending Line�察�either direct�察�as from Son to Father or Grandfather�察。�which is not admitted by the Law of England�� or in the transversal Line�察�as to the Uncle or Aunt�察 �Great´Uncle or Great´Aunt�察�&c。 And because this Line is again divided into the Line of the Father�察�or the Line of the Mother�察 �this transverse ascending Succession is either in the Line of the Father�察�Grandfather�察�&c。 on the Blood of the Father�察�or in the Line of the Mother�察�Grandmother�察�&c。 on the Blood of the Mother�此 �The former are called Agnati�察�the latter Cognati�此�I shall therefore set down a Scheme of Pedigrees as high as Great´Grandfather and Great´Grandmothers Grandsires�察�and as low as Great´Grandchild�察�which nevertheless will be applicable to more remote Successions with a little Variation�察�and will explain the whole Nature of Descents or hereditary Successions。 This Pedigree�察�with its Application�察�will give a plain Account of all Hereditary Successions under their several Cases and Limitations�察�as will appear by the following Rules�察�taking our Mark or Epocha from the FATHER and MOTHER。 But first�察�I shall premise certain general Rules�察�which will direct us much in the Course of Descents as they stand here in England�此。�Viz。�� First。 In Descents�察�the Law prefers the Worthiest of Blood�此 �As�察 �1st�察�In all Descents immediate�察�the Male is preferred before the Female�察�whether in Successions Descending�察�Ascending�察�or Collateral�此�Therefore in Descents�察�the Son inherits and excludes the Daughter�察�the Brother is preferred before the Sister�察�the Uncle before the Aunt。 2dly�察�In all Descents immediate�察�the Descendants from Males are to be preferred before the Descendants from Females�此�And hence it is�察�That the Daughter of the eldest Son is preferred in Descents from the Father before the Son of the younger Son�察�and the Daughter of the eldest Brother�察�or Uncle�察�is preferred before the Son of the younger�察�and the Uncle�察�nay�察�the Great´Uncle�察�i。e。 the Grandfather's Brother�察�shall inherit before the Uncle of the Mothers Side。 Secondly�察�In Descents�察�the next of Blood is preferred before the more remote�察�tho' equally or more worthy。 And hence it is�察 �1st�察�The Sister of the whole Blood is preferred in Descents before the Brother of the half Blood�察�because she is more strictly joined to the Brother of the whole Blood ��viz。 by Father and by Mother�� than the half Brother�察�though otherwise he is the more worthy。 2dly�察�Because the Son or Daughter being nearer than the Brother�察�and the Brother or Sister than the Uncle�察�the Son or Daughter shall inherit before the Brother or Sister�察�and they before the Uncle。 3dly�察�That yet the Father or Grandfather�察�or Mother or Grandmother�察�in a direct ascending Line�察�shall never succeed immediately the Son or Grandchild�察�but the Father's Brother ��or Sisters�� shall be preferred before the Father himself�察�and the Grandfather's Brother ��or Sisters�� before the Grandfather�此�And yet upon a strict Account�察�the Father is nearer of Blood to the Son than the Uncle�察�yea than the Brother�察�for the Brother is therefore of the Blood of the Brother�察�because both derive from the same Parent�察�the Common Fountain of both their Blood。 And therefore the Father at this Day is preferred in the Administration of the Goods before the Son's Brother of the whole Blood�察�and a Remainder limited Proximo de Sanguine of the Son shall vest in the Father before it shall vest in the Uncle。 Vide Littleton�察�Lib。 I。 fol。 8�察�10。 Thirdly�察�That all the Descendants from such a Person as by the Laws of England might have been Heir to another�察�hold the same Right by Representation as that Common Root f rom whence they are derived�察�and therefore�察 �1st�察�They are in Law in the same Right of Worthiness and Proximity of Blood�察�as their Root that might have been Heir was�察 �in case he had been living�此�And hence it is�察�that the Son or Grandchild�察�whether Son or Daughter of the eldest Son�察�succeeds before the younger Son�察�and the Son or Grandchild of the eldest Brother�察�before the youngest Brother�察�and so through all the Degrees of Succession�察�by the Right of Representation�察�the Right of Proximity is transferred from the Root to the Branches�察�and gives them the same Preference as the next and worthiest of Blood。 2dly�察�This Right transferred by Representation is infinite and unlimited in the Degrees of those that descend from the Represented�察�for Filius the Son�察�the Nepos the Grandson�察�the Abnepos the Great´Grandson�察�and so in infinitum enjoy the same Privilege of Representation as those from whom they derive their Pedigree lhave�察�whether it be in Descents Lineal�察�or Transversal�察 �and theref ore the Great´Grandchild of the eldest Brother�察 �whether it be Son or Daughter。 shall be preferred before the younger Brother�察�because tho' the Female be less worthy than the Male�察�yet she stands in Right of Representation of the eldest Brother�察�who was more worthy than the younger。 And upon this Account it is�察 �3dly�察�That if a Man have two Daughters�察�and the eldest dies in the Life of the Father�察�leaving six Daughters�察�and then the Father dies�察�the youngest Daughter shall have an equal Share with the other six Daughters�察�because they stand in Representation and Stead of their Mother�察�who could have had but a Moiety。 Fourthly�察�That hy the Law of England�察�without a special Custom to the contrary�察�the eldest Son�察�or Brother�察�or Uncle�察 �excludes the younger�察�and the Males in an equal Degree do not all inherit�此�But all the Daughters�察�whether by the same or divers Venters�察�do inherit together to the Father�察�and all the Sisters by the same Venter do inherit to the Brother。 Fifthly�察�That the last Seisin in any Ancestor�察�makes him�察�as it were the Root of the Descent equally to many Intents as if he had b