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