MY design in the fol­lowing Discourse is to Treat of the Hereditary Transmission of Lands from Ancestor to Heir, and the certainty thereof, and what growth this Doctrine has had in [Page 2]Succession of time, till it arrived to the State and Prefection which now it hath.

And touching Heredi­tary Transmission, or Suc­cession commonly with us called Descents, I shall hold this Order in my Dis­course, (viz.)

1st, To give some ac­count touching the Anci­ent Laws, both Jewish, Greek and Roman, concerning this matter.

2ly, To observe some things, wherein it may ap­pear, how the particular Customs, or Municipal [Page 3]Laws of other Countries, varied from those other Laws.

3ly, To give some ac­count of the Rules and Laws of Descents, or Hereditary Transmissions as they stood, and at this day stand in Eng­land, with the successive al­terations, that process of time, and the wisdom of our Ancestors, and Customs grown up, tacitely, gra­dually and successively, have made therein.

And first touching the Succession or Descent of In­heritance, as also of Goods, among the Jews, Mr. Selden [Page 4]in his Book De Successionibus apud Hebraeos, hath given us an excellent account, as well out of the holy Text, as out of the Comments of Rabbins, or Jewish Lawyers, which I briefly comprise, in the 5, 6, 7, 12 and 13 Chap­ters of that Book, the sum whereof, for so much as concerns my purpose, is this.

1. That in the descending Line, the Descent or Succession, was unto all the Sons, only the eldest had a double Portion, (viz.) If there were three Sons, the eldest had two fourths, [Page 5]and each other Son one fourth part.

2. The Nephew, or Son of the Son, dying in the Fathers Life, and so in infinitum, suc­ceeded in the partition of his Father, as if his Father had been in Possession of it.

3. The Daughter did not succeed in the Inhe­ritance of the Father, as long as there was Sons, or Descendants from the. But if one Son had died in the life of his Father, ha­ving Daughters and [Page 6]without Sons, his Daughters succeeded in his part, as if he had been Possessed.

4. In case there were no Sons but Daughters, the Daughters equally succeeded their Father without any prelation of the eldest, to two parts, or a double Portion.

5. But if the Son had an Inheritance, and died without Issue, having a Father, and Brothers, the Inheritance of the Son descended, not to his Brothers unless [Page 7]in case of the next Bro­ther taking to Wife the deceased's Wife, to raise Children for the Bro­ther deceased, but in such case the Fa­ther inherited his Son entirely.

6. But if the Father were dead, it came to the Brothers, as it were as Heirs to the Father, in the same manner, as if the Inheritance had been actually pos­sessed by him; and therefore, the Fathers other Sons, and their Descendants in infini­tum succeeded, but [Page 8]yet equally, and with­out any double Porti­on to the eldest, be­cause (though in truth the Brothers succeeded as it were in Right of Representation from the Father; yet) the Father dying before his Son, the Descent was de facto, immedi­ately from the Bro­ther to the Brother, where the Law gave not a double Portion; and in case the Father had no Sons, or De­scendants from them, then it descended to all the Sisters.

7. If the Son died without Issue, and his Father or any Descendants from him were extant, it went not to the Grandfather, or his other Descendants. But if the Father were dead without Issue, it de­scended to the Grand­father, and if he were dead, then to his Sons and their Descendants, and for want of them, then to his Daughters or their Descendants, as if the Grandfather him­self had been actually possessed, and had died. And so, mutatis mutan­dis, [Page 10]to the Proavus, Aba­vus, Atavus, &c. But the Inheritance of the Son, never retorted to the Mother, or to any of her Ancestors, but she and they were totally excluded.

8. The double Portion that was therefore jus pri­mogenituroe never took place, but in that per­son that was the Primo­genitus of him, from whom the Inheritance immediately descend­ed, or in him that re­presented him. If A. had two Sons, B. and C. and B. the eldest, had [Page 11]two Sons, D. and E. and died, B. should have had a double Portion, (viz.) two thirds and C. only one third. And if B. had died in the life time of A. and then A. died, D. and E. should have had the two thirds, or double Porti­on, which had belong­ed to B. if he had sur­vived his Father, and this double Portion should have been di­vided between D. and E. thus, viz. D. should have had two thirds of the two thirds that came to them, and E. the other third part thereof.

Among the Graecians, the Laws of Descents, in some sort, resembled those of the Jews. In some things they differed Vide Petyts Leges Atticae, Tit. 6. De Testamentis & Haereditario Jure, where the Text of their Law runs thus, Omnes Legitimi Filii Hae­reditatem Paternam ex aequo inter se Haeriscunto. Siquis intestatus moritur, relictis fili­abus, qui eas in Ʋxores du­cent Haeredes sunto. Si nullae su­persint, hi ab intestato haeredi­tatem cernunto. Et primo qui­dem Fratres defuncti Germani & Legitimi Fratrum Filii hoe­reditatem simul adeunto. Si nul­li Fratres aut Fratrum Filii [Page 13]supersint, iis geniti eadem Le­ge haereditatem cernunto: Mas­culi autem iis geniti, etiamsi remotiori cognationis sint gra­du, proeferuntor. Si nulli super­sint Paterni proximi ad so­brinorum usque Filios, mater­ni defuncti propinqui simili Lege Haereditatem adeunto. Si è neutra cognatione supersint intra definitum gradum, pro­prior cognatus paternus adito Notho Nothaeve. Superstite legi­tima Filia, Nothus hoeredita­tem Patris ne adito. This Law is very obscure, but the Sence seems to be briefly this, That all the Sons equal­ly inherit the Father; but if he have no Sons, then [Page 14]the Husbands of the Daugh­ters; if he have no Chil­dren, then his Brothers, and his Brothers Children; and if none, then his next Kin­dred of the part of his Fa­ther, preferring the Males before the Females; and if none of the Fathers Line, ad sobrinorum usque Filios, then to descend to the Mothers Line. Vide Petyt's Gloss. in hanc Legem.

Among the Romans it appears, that the Laws of Succession did successively vary, for the Laws of the Twelve Tables excluded the Females from Inheriting, [Page 15]and had many other strait­nesses which were succes­sively remedied by Claudi­us, and after him by Hadri­anus, in Senatus-consulto Ter­tulliano, and after him by Justinian, in the third Book of his Institutes, De Haere­ditatibus quoe ab intestato de­feruntur, and the two ensu­ing Titles. And again, all this further explained, and setled by the Novel Con­stitutions of the same Justi­nian, stiled Authenticoe No­velloe, de Haereditatibus ab Intestato venientibus, & agna­torum jure sublato; There­fore omitting the large In­quiry into the successive [Page 16]changes of the Roman Law in this particular, I shall only set down how, accord­ing to the Constitution, the Roman Law stands setled therein.

The Descents, or Succes­sions from any Person, are of three Kinds, viz.

• 1. Descending.
• 2. Ascending.
• 3. Collateral, viz. In Agnatos à Parte Patris, in Cognatos à Parte Ma­tris.

1st, In the descending Line, these Rules are directed.

1. The descending Line, whether Male or Female, whether immediately or remote, takes place, and prevents the Descent or Succession Ascending, or Collateral, in infinitum.

2. The remote Descen­dants of the Descending Line, succeed in Stirpem, That is, to succeed into that right, which his Parents should have had.

3. That this Descent or Succession is equal in all the Descendants, without [Page 18]preference of the Male be­fore the Female. So that, if the Common Ancestor had three Sons and three Daugh­ters, each had a sixth part, and if one died in the life of the Father, having three Sons and three Daughters, that sixth part, that had be­longed to the Person dead, should have been equally divided, between his or her six Children, and so in infi­nitum, in the Descending Line.

2ly, In the Ascending Line, there are these Rules.

1. If the Son die without Issue, or any Descending from him, leaving a Father and Mother, both of them shall equally succeed to the Son, and prevent all others of the Collateral Line, Ex­cept Brothers and Sisters, as shall be said, or if only a Father, or only a Mo­ther, he or she alone shall succeed.

2ly, But if the deceased had a Father, Mother, Bro­ther and Sister, ex utriusque parentibus conjuncti; they shall all equally succeed the Son, by equal parts, with­out preference of the Male.

3. In the Collateral Line.

1. If the Descendant die without Father, Mother, Son or Daughter, or any Descending from them in the right Descending Line, the Brothers and Sisters ex utriusque Parentibus conjun­cti, and the immediate Children of them, shall succeed equally, without­pre­ference of either Sex, and the Children from them, shall succeed in Stirpes. As if there be a Brother and Si­ster, and the Sister dies in the Life of the Descendant, leaving one or more Chil­dren. All such Children shall succeed in the moiety, [Page 21]that should have come to their deceased Mother, had she survived.

2. But if there be no Bro­thers or Sisters, ex utriusque Parentibus conjuncti; nor any of their immediate Chil­dren, then the Brothers and Sisters of the Half­blood, and their immedi­ate Children, succeed in Stirpes, to the deceased, without any Prerogative to the Male.

3. But if there be no Bro­thers or Sisters of the whole, or half-blood, nor any of their immediate Children, (for their Grand-Children [Page 22]are not provided for by Law) then the next Kindred are called to the Inheritance.

4. But if the next be in equal degree, whether on the part of the Father, as Agnati; or on the part of the Mother, as Cognati, then they are e­qually called to the Inheri­tance, and equally succeed in Capita, and not in Stir­pes.

Thus far of these settled Laws of the Jews, Greeks and Romans. But the par­ticular, or Municipal Laws, and Customs of almost e­very Country, derogate from these Laws, and direct [Page 23]Successions in a much dif­ferent way.

For instance, By the Cu­stoms of Lombardy (accor­ding to which, the Rule of the Feuds, both in their Descents, and other things, are much directed) their Descents are in a much different manner. Lib. 1. Feud. Tit. 1. If a Feud be granted to one Brother, who dies without Issue, it Descends not to his Bro­ther', unless especially so provided 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 [Page 24]both to the Sons and Daughters. The Brother al­so succeeds not, to the Brother, unless specially so provided, ibid. Tit. 50. The As­cendants succeed not, but only the Descendants, nei­ther doth a Daughter suc­ceed, nisi ex parte, vel nisi sit Feudum foemininum.

If we come nearer home, to the Normandy Laws, there are two kind of Lands par­table, or not partable; the Lands that are partable, are all Vavasories, Burgages, and such like, which are much of the nature of our Soccage Lands. These descend to all the Sons, or to all the Brothers. Lands not part­able [Page 25]are Fiefs and Dignities; these descend to the eldest Son, and not to all the Sons, and if there be no Sons, then to all the Daugh­ters partable. For want of Sons and Nephews, it de­scends to the Daughters, if no Sons or Daughters; or Descendants from them, it descends to the Brothers; and for want of Brothers, to the Sisters, observing, as before, the difference be­tween Lands partable and not partable, and according­ly the Descent runs to the posterity of the Brothers, un­to the seventh Degree. And if there be no Brothers or Sisters, or any Descendants [Page 26]from them, within the se­venth Degree, it descends to the Father; and if the Father be dead, to the Un­cles and Aunts, ut supra, to Brothers and Sisters; and if there be none, then to the Grand-father. So that, according to their Law, the Father is postpon'd to the Brother and Sister, and their Issues, but is prefer­red before the Uncle; tho' by the Jewish Law, the Father be preferred before the Brother; by the Roman Law succeeds together with the Brother; and by the English Law, takes not im­mediately by descent, but the Fathers Brother.

If Lands descend from the part of the Father, they never Resort by Descent, to the Line of the Mother; but in cases of Purchases by the Son, who dies without Issue; for want of Heirs of the part of the Father, it descends to the Heir of the part of the Mother, ac­cording to the Law of England.

The Son of the eldest Son, dying in the life of the Father, is preferred, be­fore the younger Son sur­viving the Father, as the Law stands here now, but it hath some interruption.

4. In an equality of de­gree, in Collateral Descents, the Male Line is preferred, before the Female.

5. Although by the Civil Law, Fratres utriusque Paren­tis conjuncti, praeseruntur fra­tribus consanguineis tantum, vel uterinis; yet it should seem, by the Custom of Normandy, That Fratres con­sanguinei, viz. ex eodem patre, sed diversa matre, shall take by Descent, together with the Brothers, ex utroque conjuncti, upon the death of any of such Brothers. But this seems to be a mistake, for it seems the Half-blood, [Page 29]hinders the Descent be­tween Brothers or Sisters.

6. Leprosie was among them, an Impediment of Succession, but then it seems, it must be solemnly adjud­ged to be a Leprosie, by the Sentence of the Church. Upon this and much more that might be observed, upon the Customs of se­veral Countries, the Rules of Succession, or Heredi­tary Transmission, have been various in several Coun­tries, according to various Laws, Customs and U­suages.

And now, after this brief Survey of the Laws and Customs of other Coun­tries, I come to the Laws and Usuages of England in relation to Descents, and the growth that those Cu­stoms have successively had, and whereunto they are now arrived.

1. Touching the Here­ditary Succession, it seems, that according to the An­cient British Laws; their el­dest Sons inherited their Earldoms, and Baronies, for they had great Digni­ties, and Jurisdictions an­nexed to them, and were in nature of Principalities. [Page 31]But their ordinary Free­holds descended to all the Sons; and this Custom they carried with them in­to Wales, whither they were driven. This appears by the Statute Walliae 12 Ed. 1. Aliter usitatum est in Wallia quam in Anglia quoad Suc­cessionem Haereditatis, eò quòd Haereditas partibilis est inter Haeredes Masculos, & à tem­pore cujus non extiterit Me­moria partibilis extitit. Domi­nus Rex non vult quòd Con­suetudo illa abrogetur, sed quòd Haereditates remaneant parti­biles inter Consimiles Haeredes, sicut esse consueverunt, & fiat Partitio illius sicut fieri consue­vit; hoc excepto, quòd Bastardi [Page 32]non habeant de caetero Haeredi­tates, & etiam quòd non habe­ant Purpartes cum Legitimis, nec sine legitimis. Upon which three things are observable.

First, That at this time, the Hereditary Succession of the eldest Son, was then known to be the Common, and usual Law in England.

2ly, That the Succession of all the Sons, was the Ancient Customary Law among the British in Wales, which is here continued.

3ly, That before this time, Bastards were admitted to [Page 33]Inherit in Wales, as well as the Legitimate, which U­suage is here abrogated. And although we have but few Evidences, touching the Bri­tish Laws, before their Ex­pulsion into Wales, yet this usage seems sufficiently to Evidence, That this was the antient British Law.

2ly, As to the times of the Saxons and Danes, their Laws collected by Brampton, and by Mr. Lambard, speak not much concerning the Course of Descents. Yet it seems, that commonly the Descents of their ordinary Lands, (at least except Bar­ronies and Royal Inheri­tances) [Page 34]descended also to all the Sons. Among the Laws of Canutus, there is this Law, Lambard fol. 122, Tit. de Intestato Mortuis. Sive quis incuria, sive morte repentina fuerit intestato Mortuus, Domi­nus tamen nullam rerum su­arum partem (praeter eam quae jure debetur Hereoti nomine) sibi assumito. Verùm eas Ju­dicio suo Ʋxori, Liberis, & cognatione proximis, justè (pro suo cuique jure) distri­buito. Upon which we may observe these things.

1st, That the Wise had a share, as well of Lands for her Dower, as Goods.

2ly, That in reference to Hereditary Succession, there then seemed to be little difference, between Lands and Feuds, for here is no distinction.

3ly, That there was a kind of settled right of Successi­on, with reference to pro­ximity and remoteness, pro suo cuique jure.

4ly, That in reference to Children, they seemed all to succeed alike, without any distinction between the Males and Females.

5ly, That yet the Ance­stor might dispose by his Will, as well of Lands as Goods, which usage seems to have obtained, unto the time of H. 2. as ap­pears hereafter by Glanvil.

3. It seems, That until the Conquest, the Descent of Lands was, at least to all the Sons alike, and, for ought appears also, to all the Daughters, and that there was no difference in the Hereditary Transmissi­on of Lands and Goods at least, in reference to the Children. This appears, by those Laws of King Edward, [Page 37]confirmed by the Conquer­er and recited in Lambard fol. 167. and also by Mr. Sel­den upon Eadmerus, Lege 36. Tit. De Intestatorum bonis 184. Siquis intestatus obi­erit, Liberi ejus Haereditatem equaliter dividant.

But this equal division of Inheritances among the Children, was found to be very inconvenient.

For First, It weakned the Strength of the Kingdom, for by frequent parcelling, and subdividing of Inhe­ritances in process of time, Inheritances were so crum­bled, that there were few persons of able Estates, left [Page 38]to undergo publick Char­ges or Offices.

2ly, 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 these little parcells of Land to apply themselves to, would have betaken themselves either to Trades, or Military, or Civil, or Ecclesiastical Im­ployments, neglected those opportunities, and applied themselves to their small dividends of Land, where­by they neglected oppor­tunities of greater advan­tage, to enrich them­selves [Page 39]and the Kingdom.

And therefore, William the Conqueror (having by his accession to the Crown, gotten the Possessions and Demeans of the Crown; and also, very many and great possessions of them that opposed him, or ad­hered to Harold); disposeth of these Lands, or great part of them to his Coun­trymen, and others that adhered to him, and re­tained certain Honorary Te­nures, either by Baronage, or in Knights Service, or by Grand Serjeantry, for the Defence of the King­dom. And possibly also, as the desire of many Own­ers, [Page 40]changed their Tenures into Knights Service. Which Introduction of new Te­nures, was not nevertheless without consent of Par­liament, as appears by the additional Laws before mentioned, That King William by the advice of Parliament made mention of by Mr. Selden, upon E­admerus pag. 191, among 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. Et quod sint semper prompti, & bene pa­rati [Page 41]ad servicium suum in­tegrum nobis explendendum, & peragendum, cum semper opus affuerit, secundum quod nobis de Feodis debent, & Tenementis suis de jure fa­cere. Et sicut illis statuimus, per commune consilium totius Regni nostri & illis dedimus & concessimus in Feodo jure Hae­reditario. Whereby it appears, that there were two kinds of Military Provisions, one that was set upon all Free­holders, by common consent of Parliament, which was usually called Assiza Armorum, and another that was Conventional, and by Tenure upon the Infeu­dation of the Tenant, which was called Knights Service, [Page 42]and sometimes Royal, and sometimes Foreign Service, and sometimes Servicium Loricae.

And hence it came to pass, that (not only accor­ding to the Custom of Nor­mandy, but also according to the Custom of other Countries.) These Honorary Fees, or Infeudations be­came descendable to the eldest, and not to all the Males. And hence it is, That in Kent, where the Custom of Descent to all the Males, generally prevails; They pretend, a concessi­on of all their Customs by the Conqueror, to obtain their Submission to his [Page 43]Government, according to the Romantick Story of their moving Wood. Yet, even in Kent it self, these ancient Tenures or Fees, that are anciently held by Knights Service, are de­scendable to the eldest Son, as Mr. Lambard hath ob­served to my hand, in pag. 553. out of the 9th of H.3. Fitz Tit. Prescription 63, 26 H. 8.5. and the Statute of 31 H. 8. cap. 3. But yet, even in Kent it self, If Gavel­kind Land, Escheat, or come to the Crown by At­tainder, or Dissolution of Monasteries, and be grant­ed to be held in Knights Service, or per Baroniam, [Page 44]the Customary Descent is not changed, neither can be, but by Act of Parliament, for it is a Custom fixed to the Land.

But those Honorary Fees, made in ancient times, so shortly after the Conquest, did silently, and suddainly assume the Rule of De­scent to the eldest, and ac­cordingly held it; and so, (although possibly there were no Act of Parliament of those elder times, that altered the ancient course of Descents, from all the Sons to the eldest, or at least none that we know of; yet,) the use of the Neighbour Country, might [Page 45]introduce the same Usage here, as to these Honorary Possessions.

And because these Honorary Inseudations were many, and scattered almost through all the Kingdom in a little time, they introduced a a parity in the Succession of Lands of other Tenures, as Soccage or Vavasories. So that without question, by little and little almost ge­nerally in all Counties of England (except Kent, who were most Tenacious of their own Customs, in which they gloried, and some particular Fees, and Places where a contrary Usage prevailed) the ge­nerality [Page 46]of Descents or Suc­cessions by little and little, as well of Soccage Lands, as of Knights Service, went to the eldest Son, accor­ding to the Declaration of King Edward the first, in the Statute of Wales abovemen­tioned, as will more fully appear by what follows.

In the time of H. 1. Lambard fol. 203. we find in his 70th Law, that it should seem, that the whole Land did not yet descend to the eldest Son, but be­gan a little to look that way. Primum patris Feu­dum primogenitus filius habe­at. As to Collateral De­scents, the Law determined [Page 47]thus, Lambard ut supra. Si­quis sine liberis decesserit, Pater out mater ejus in Hae­reditatem succedat; vel fra­ter vel soror si pater & ma­ter desint; si nec hos hàbeat, soror Patris vel Matris, & de­inceps in quintum genicu­lum; qui cum propinquio­res in parentela, fiunt, Hae­reditario jure succedant; & dum virilis Sexus extiterit, & Haereditas abinde fit, foe­minina non Haereditetur. By this it seems.

1. The eldest Son (though he had Jus Primogeniturae, the principal Fee of his Father, yet) he carried not all the Land.

2. That for want of Chil­dren the Father or Mother, inherited, before the Bro­ther or Sister.

3. That for want of Chil­dren, Father, Mother, Bro­thers and Sisters, the Lands decended to the Uncles and Aunts, to the Fifth Degree.

4. That in Succession Collateral Proximity of Kindred was preferred.

5. That the Male was preferred before the Fe­male; That is, the Father's Line was preferred before [Page 49]the Mothers, unless the Land descended from the Mother, and then the Mothers Line was to be preferred.

How this Law was observed in the Intervals, between Henry the first, and Henry the second, we can give no account. But the next pe­riod that we come to, is Henry the 2d. Glanvil in his seventh Book, gives us some account how the Law stood in his time, wherein, notwithstanding it will appear, there was some incertainty in the business of Descents, or Hereditary Successions, though it was [Page 50]much better polited than formerly.

The Rules then of Suc­cession were either in re­ference to Goods or Lands. As to Goods, one third part went to the Wife, ano­ther third part to the Chil­dren, the other third part to the Testator's disposal; But if he had no Wife, a Moiety went to the Chil­dren, the other Moiety to his disposal, Glan. lib. 7. c. 5. But as to the Succession of Lands, the Rules were these: 1st, If the Lands were Knights Service, they ge­nerally went to the eldest Son; and in case of no Son, [Page 51]to all the Daughters; and in case of no Children, to the eldest Brother.

2ly, If the Lands were Socage, it descended to all the Sons, Si fuerit Socagi­um & id antiquitus divisum, only the chief House was to be allotted to the Pour­party of the eldest, and a Compensation made to the rest in lieu thereof. Si vero non fuerit antiquitus Di­visum, tunc Primogenitus, se­cundum quorundam consuetu­dinem totam Haereditatem obtinebit, secundum autem quo­rundam consuetudinem post­natus silius Haeres est, Glanvil lib. 7. cap. 3. So that although [Page 52]Custom directed variously the Descent, either to the eldest, youngest, or all the Sons; Yet, it seems at this time Jus commune, or Common right spoke for the eldest Son to be Heir, no Cu­stom intervening.

3ly, As the Son, or Daughter, so their Chil­dren in infinitum are pre­ferred in the Descent be­fore the Collateral Line, or Uncles.

4ly, But if a Man have two Sons, and the eldest dies in the life time of the Father, having a Son or Daughter, and then the [Page 53]Father dies; it was then controverted, whether the Son, or the Nephew should succeed the Father, though the better Opinion seemed to be for the Nephew, Ibid. cap. 3.

5ly, A Bastard could not Inherit, ibid. cap. 13 And although by the Com­mon and Civil Law, If A. hath a Son born of B. be­fore Marriage, and after A. Marries B. this Son be Legitimate and Heredita­ble: Yet according to the Law of England then used, as well as after, he was not Hereditable, Glan. lib. 7. cap. 15.

6ly, In case the Pur­chaser die without Issue, the Lands descended to the Brother, and for want of Brothers to the Sisters, and for want of them to the Children of the Bro­thers or Sisters, and for want of them to the Un­cles, and so onwards ac­cording to the Rules of Descents at this day; and the Father and Mother were not immediately to Inherit the Son, but the Brothers or Uncles, and their Children, Glan. lib. 7. cap. 4.

And it seems, that in all things else the Rule of Descent, in reference to the Collateral Line, held much the same as now: As namely, If Land de­scended of the part of the Father, it should not resort to the part of the Mother, & è converso; But in case of Purchase, for want of Heirs of the part of the Father, it resorted to the Line of the Mother, and the nearer and worthier Blood was preferred, so that if there were any of the part of the Father, though never so far di­stant, it hindered the de­scent to the Line of the [Page 56]Mother, though much near­er.

There were in those times as it seems two Im­pediments of Descent, or Hereditary Succession which now do not at all obtain.

1. Leprosie, if so ad­judged by the Sentence of the Church, this indeed I find not in Glanvil, but I find it pleaded, and allow­ed in the time of King Jolin, and the Land ad­judged to the Sister, P. 4. Johannis.

2. There was another curiosity, and it is won­derful to see how much, and how long it prevailed, for we find it in use in Glanvil, that wrote in King Hen. 2d's time; in Bracton, that wrote in Hen. 3d's time; in Fleta, that wrote in the time of Ed. 1. and in the broken year Ed. 1. Fitz. Avowry 235. Nemo potest esse Tenens & Dominus & Homagium repellit perquisi­tum. And therefore, if the eldest Brother had enfeof­fed the second reserving Homage, and had received Homage, and then the se­cond had died without Is­sue, [Page 58]it should have descend­ed to the youngest, and not to the eldest Brother; quia Homagium epellit per­quisitum, tee for this that I may mention it once for all, Glan. lib. 7. cap. 1. Bra. lib. 2. cap. 30. Fleta lib. 6. cap. 1. And so it has been for ought I can find ever since 3 Ed. 1. and in­deed it is antiquated rather than altered, and the Fan­cy upon which it is ground­ed hath appeared trivial; for if the eldest Brother enfeoff the second reser­ving Homage, the se­cond dying without Issue, it will Descend to the el­dest as Heir, and the Seig­nioury [Page 59]is extinct. Indeed it might have been some Reason to have examined, whether he might not have waved the Descent, in case his Services had been more beneficial than the Land; but there could be little Reason for this to exclude him from Succession. I shall mention no more of this nor the former Impe­diment, (viz.) Leprosie, for they are both vanished, and antiquated long since, and neither the one nor the other is at this day any impediment of Descent.

And now passing over the time of King John, and Richard the first, because I find nothing of moment in that time relating to the Title in question, un­less the usurpation of King John upon his eldest Bro­thers Son, which he would fain have justified, by in­troducing a Law of prefer­ring the younger Son be­fore the Nephew, descend­ed from the eldest Brother: But this pretention could no ways justifie his Usur­pation, as hath been shewn in the time of Henry the Second.

We have the Tractate of Bracton lib. 2. cap. 30, 31. and lib. 5. The truth is, there is so little variance as to the Points of Descents, between the Law as it was taken when Bracton wrote, and the Law as it was af­terwards taken in Edward the first's time, when Brit­ton and Fleta wrote, that there is very little diffe­rence between them as may easily appear, especially by comparing of Bract.ubi supra and Fleta Lib. 5. Chapter the 9th, Liber the 6th, Chapters the 1st and 2d, that the latter seems to be in effect an Abstract of the former, therefore I shall set down [Page 62]what in substance both say, and thereby it will appear, that the Rules of Descents in the times of Henry the 3d, and Ed­ward the 1st, were very much one.

1st, The Law seems set­tled now unquestionably, that the eldest Son was in Common right Heir, not only in cases of Knights Service Land, but also of Soccage Lands, unless there was a Special Custom to the contrary, as in Kent and some other places, and so that Point of the Com­mon Law is fully settled.

2ly, That all the Descen­dants in infinitum, from any Person that had been Heir (if he had been living) were Inheritable: As the Descendants of the Son, of the Brother, of the Uncle, &c.

3ly, 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 Glan­vil's time was settled, Glan. lib. 7. cap. 3. Cum quis au­tem moriatur habens filium postnatum & ex Primogenito [Page 64]filio praemorturo Nepotem, mag­na quidem Juris dubitatio solet esse, uter illorum praeferen­dus sit alij in illa Successi­one; scilicet utrum Filius an nepos.

4ly, The Father, or Grand­father could not by Law Inherit immediately his Son.

5ly, Leprosie, though it were an exception to the Plaintiff, because he ought not to converse in the Courts of Law, yet we no where find, that it was an Impediment of Descent.

So that upon the whole matter for any thing I can observe in them, the Rules of Descent then stood set­tled in all Points as they are at this day, except those few matters which yet in process of time soon settled as they now stand, (viz.)

1. That Impediments of the hinderance of Descent, from him that did Ho­mage, to him that received it, seems to have yet been in use, at least till the 3 Ed. 1. and in Fleta's time, for he puts the case and admits it.

Whereas they both a­gree that Half-blood to him who is the Purchaser, is an Impediment of the Descent; yet in case of a Descent from a Common Ancestor, Half-blood is no Impediment. For in­stance; A. hath Issue B. a Son, and C. a Daughter by one venter, and D. a Son by another venter, if B. Purchase in Fee, and die 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; [Page 67]it was a doubt in the time of Bracton and Britton, whether it should go to the younger Son, or the Daughter, but though it were then a doubt, yet the Law hath since that time been settled, that in both cases it descends to the Daughter, Seseina sacit Stir­pem & primum gradum, & possessio fratris de feodo sim­plici facit sororem esse haere­dem.

Upon the whole matter it seems, that abating these small inconsiderable vari­ances, the States and Rules of Descents as they stood, in the time of Henry the third, or at least of Ed­ward [Page 68]the first, 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 Rules of Descents in Fee-simple as they stand at this day, without medling with par­ticular Limitations and Entails, which vary the course of Descents in some cases from the Common Rules of Descents in He­reditary Succession, and herein we shall see what the Law hath been, and [Page 69]continued touching the same ever since Bracton, who wrote in Henry the third's time, now above Four hundred years since, and by that we shall see what alterations succession of time hath 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 hath stood settled here for a­bove Four hundred years.

All possible Hereditary Succession may be distin­guished into these three kinds: [Page 70]1st, Descending, as from Father to Son, or Daugh­ter, to Nephew, or Niece.

2ly, Collateral, as from Brother to Brother, or Si­ster and Brothers Children.

3ly, Ascending, either di­rect, as from Son to Fa­ther, or Grand-father which is not admitted by the Laws of England; or in the Transversal Line, as to the Uncle or Aunt, Great Uncle, or Great Aunt, and because this Line again di­vides it self into the Line of the Father and Mother, this Transversal ascending Suc­cession is either in the Line of the Father, Grand­father, &c. or in the Line [Page] [Page] [Page] [Page 71]of the Mother, Grand­Mother, &c. the former are called Agnati, the latter Cognati, I shall therefore set down a Scheme of Pe­digrees, to explain the na­ture of Descents, or Here­ditary Successions.

Pedigree.

THis Pedigree with its Application will give a plain account of all He­reditary Succession, under their several Cases and Limitations, as will appear by these ensuing Rules, take our Mark or Epocha from the Father.

1 Rule, In Descents the Law preferrs the Worthiest Blood; and upon this Ac­count.

1st, In all Descents im­mediately the Male is pre­ferred before the Female, whether in Successions, De­scending, Ascending or Collateral; therefore the Son Inherits and Excludes the Daughter, the Brother is preferred before the Si­ster, the Uncle before the Aunt.

2ly, In all Descents imme­diate, the Descendants from Males are preferred before [Page 73]the Descendants from Fe­males; and hence it is, that the Daughter of the eldest Son, is preferred in Descent from the Father, before the Son of the youngest Son, the Daugh­ter of the eldest Bro­ther or Uncle is preferred before the Son of the younger; the Uncle, nay the Great Uncle, or Great Grand-fathers Brother shall Inherit before the Uncle of the Mothers side.

2 Rule, That in Descents, the next of Blood is pre­ferred before the Remote, though equally worthy; and upon this account.

1st, The Sister of the whole Blood, is preferred in Descents before the Brother of the half Blood, because more strictly joyn­ed to the Brother of the whole Blood, (viz. by the Father and Mother) than the Brother, though other­wise more worthy of the half Blood.

2ly, Because the Son, or Daughter is nearer than the Brother, the Brother or Sister than the Uncle, the Son or Daughter shall Inherit before the Brother or Sister, and they before the Uncle.

3ly, That yet the Father or Grand-father, or Mo­ther or Grand-mother in a direct ascending Line, shall never succeed imme­diately, the Son or Grand-child: But the Fathers Bro­ther shall be preferred be­fore the Father, and the Grand-fathers Brother, shall be preferred before the Grand-father, 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, [Page 76]the Common Fountain of both their Blood. And up­on this account, the Fa­ther is at this day pre­ferred in the Administra­tion of his Sons Goods, before his Sons Brother of the whole Blood, and a Remainder limited Proximo de Sanguine shall vest in the Uncle.

3 Rule, That all the De­scendants from such a Per­son, as by the Law of England, might have been Heir to another, hold the same right by Representa­tion, as that Common Root, from whom they are Descended. And there­fore,

1st, They are in Law in the same Right of Proximity and Worthiness 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 Grand-child, whe­ther Son or Daughter of the eldest Son, succeeds before the youngest Son. The Son or Grand-child of the eldest Brother, suc­ceeds before the youngest Brother, and so in all De­grees of Succession by the right of Representation, the right of Proximity, is transferred from the Root to the Branches, and gives [Page 78]them the same preference as next, or Worthiest of Blood.

2ly, This Right transfer­red by Representation, is infinite and unlimited in the Degrees of those that descend from the Repre­senter; the Filius, the Nepos, Pronepos, Abnepos, and so in infinitum, enjoy the same Privilege of Re­presentation, as those from whom they derive their Pedigree, as well in De­scents Lineal as Transversal; and therefore the Abnepos, or Abneptis of the eldest Brother, whether it be Son or Daughter, shall be pre­ferred [Page 79]before the youngest Brother, because, though 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 youngest.

3ly, And upon this ac­count it is, That if a Man hath two Daughters, and the eldest die in the Life of the Father, leaving six Daughters, and then the Father dies, the youngest Daughter shall have an equal share to all the rest, because they stand in Representation of their [Page 80]Mother, who should have had but a Moiety.

4th Rule, That by the Laws 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 the Daughters whether by the same, or divers ven­ters do Inherit toge­ther, the Father and all the Sisters do Inherit, the Brother by the same ven­ter.

5th Rule, That the last actu­al Seizin in any Ancestor, makes him as it were the Root of the Descent equal to many Intents, as if he had been a Purchaser; and therefore, he that cannot according to the Rules of Descent derive his Succes­sion to him, who was last actually seized, though he might have derived his Succession to some prece­dent Ancestor shall not In­herit. And hence it is, That where Lands descend to the eldest Son from the Father, and the Son enters and dies without Issue, his Sister of the whole Blood [Page 82]shall Inherit as Heir to the Brother, and not the youn­ger Son of the half Blood, because he cannot be Heir to the Brother of the half Blood. But if the eldest Son had survived the Fa­ther, and died before En­try, the youngest Son should Inherit as Heir to the Father and not the Sister, because he is Heir to Father, that was last actually seized. And hence it is, that though the Un­cle is preferred before the Father in Descent to the Son; yet if the Uncle enter after the Death of the Son, and die without Issue, the Father shall In­herit [Page 83]the Uncle, Quia Seisina sacit Stirpem.

6th Rule, That whosoe­ver derives a Title to any Land, must be of the Blood of him that first purchased it. And this is the Reason why, if the Son purchase Lands and dies without Is­sue, it shall descend to the Heirs of the part of his Father, and if he hath none, then to the Heirs of the part of his Mother, because tho' the Son hath both the Blood of the Father and of the Mother in him, yet he is of the Blood of the Mother, and the Consan­guinei of the Mother are [Page 84] Consanguinei cognati of the Son. And of the other side, if the Father had purchased the Land, and it had de­scended to the Son, and the Son had died without Issue, without any Heir of the part of his Father, it should never have descended in the Line of his Mother, but escheated, for though the Consanguinei of the Mo­ther were Consanguinei to the Son, yet they were not of Consanguinity to the Fa­ther, who was the purcha­ser. But if there had been none of the Blood of the Grandfather, yet it might have resorted to the Line of the Grandmother, be­cause [Page 85]her Consanguinei were as well of the Blood of the Father as the Mothers Con­sanguinity is of the Blood of the Son. And consequently also, if the Grandfather had purchased Lands, and it had descended from him to the Father, and from him to the Son, if the Son had entered and died with­out Issue, his Fathers Bro­thers or Sisters, or their Descendants, or for want of them, his Grandfathers Brothers or Sisters, or their Descendants, or for want of them, his great Grand­fathers Brothers or Sisters, or their Descendants, or for want of them his great [Page 86]Grandmothers, Brothers or Sisters, or their Descen­dants might have inheri­ted; for the Consanguinity of the great Grandmother, was of the Consanguinity of the Grandfather, but none of the Line of the Mother or Grandmother, (viz.) the Grandfathers Wife should have inherited, for that they were not of the Blood of the first Purchaser. And the same Rule è converso holds in Purchases in the Line of the Mother or Grandmother, they shall always keep in the same Line, wherein the first Pur­chaser settled them. But it is not necessary, that he [Page 87]that inherits be always Heir to the Purchaser, but it sufficeth if he be of his Blood, and Heir to him who was last seised. The Father purchaseth Lands, and it Descends to his Son who dies without Issue, it shall never descend to the Heir of the part of the Sons Mother; But if the Sons Grandmother hath a Bro­ther, and the Sons great Grandmother hath a Bro­ther, and there is no other Kindred, it shall descend to the Grandmothers Bro­ther; and yet, if the Father had died without Issue, his Grandmothers Brother should have been prefer­red [Page 88]before his Mothers Brother, because the for­mer was Heir of the part of his Father, though by a Fe­male, and the latter was Heir of the part of his Mother. But where the Son is once seised, and dies without Issue, his Grandmothers Brother is to him Heir of the part of his Father, and being nearer than his great Grand­mothers Brother, is pre­ferred in Descent. But this is always intended, so long as the Line of the Descent is not broken, for if the Son alien those Lands, and then repurchase them again in Fee; Now the Rules of [Page 89]Descent hold as if he had been the original Purchaser, and that it had never been in the Line of the Father or Mother.

7th Rule, In Succession, as well in the Line De­scending, Transversal or Ascending, the Line that is first derived from a Male Root, hath always the pre­ference. A. hath Issue two Sons, B. and C. B. hath Issue a Son and a Daugh­ter, D. and E. D. the Son hath Issue a Daughter, F. and E. the Daughter hath Issue a Son, G. [...]. nor any of his Descendants shall not inherit so long as there [Page 90]are any Descendants from D. and E. and E. the Daughter, nor none of her Descendants shall in­herit, so long as there are Descendants from D. the Son, whether they be Male or Female.

In Descents, Collateral as Brothers and Sisters, the same Instance applied evi­deceth the conclusion. But in Successions in the Line Ascending, there must be a fuller explanation, be­cause it is darker and more obscure; I shall therefore set forth the whole Me­thod of Transversal, As­cending, Descents in these ensuing Rules.

1st Rule, If the Son pur­chaseth Lands in Fee-simple, and dies without Issue, those of the Male Line Ascending usque in infinitum shall be preferred in the Descent according to their Proximity of Degree to the Son. Therefore the Fa­thers Brothers or Sisters, or their Descendants shall be preferred before the Bro­thers of the Grandfather and their Descendants. And again, if the Father had no Brothers nor Sisters, the Grandfathers Brothers and their Descendants, and for want of Brothers, the Grandfathers Sisters, and [Page 92]their Descendants should be preferred before the Brothers of the great Grandfather. For although by the Law of England the Father nor Grandfather cannot immediately inhe­rit the Son, yet the dire­ction of the Descent to the Collateral Line ascend­ing, is as much as if the Father or Grandfather had been by Law inheritable, and therefore as in case the Father had been inhe­ritable, he should have inherited the Son before the Grandfather, and the Grandfather before the great Grandfather, and consequently if the Father [Page 93]had inherited and died without Issue, his eldest Brother and his Descen­dants should have inherited before the younger Bro­ther, and his Descendants, and if he had no Brothers but Sisters, his Sisters and their Descendants should inherit before his Uncles, or the Grandfathers Bro­thers, and their Descen­dants, so though the Law of England exclude the Fa­ther from inheriting, it sub­stitutes, and directs the Descent as it should have been, if the Father had inherited, viz. Lets in those first that are in the next Degree to him.

2d Rule is this, That the Line of the part of the Mother shall never inherit, as long as there are any though never so remote of the Line of the part of the Father; and therefore, though the Mother hath a Brother, yet if the Atavus or Atavia of the Father hath a Brother or Sister, He and She shall be pre­ferred and exclude the Mothers Brother though he is much nearer.

3d Rule, But yet farther. The Male Line of the part of the Father descending, shall in oeternum exclude the [Page 95]Female Line of the part of the Father ascending, and therefore in the case pro­posed, the Son purchasing Lands and dying without Issue, the Sister of the Father, Grandfather or great Grandfather, and so in in­finitum shall be preferred before the Fathers Mo­thers Brother, though the Fathers Mothers Brother be a Male, and the Fa­thers Grandfathers Sister be a Female, and more remote, because it is in the Male Line, which is more wor­thy than the Female Line, though even the Female Line be of the Blood of the Father.

4th Rule, But as in the Male Line ascending, the more near is preferred in the Descent, before the remote; so in the Female Line descending, so it be of the Blood of the Father, the more near is preferred before the remote. The Son therefore purchaseth Lands and dies without Issue, the Father, Grand­father, and great Grand­father, and so upward, all the Male Line are dead without Brother or Sister, or any descending from them, but the Fathers Mother hath a Sister or Brother, and also the Fa­ther's [Page 97]Grandmother hath a Brother, and likewise the Fathers great Grand-mother hath a Brother; it is true, all these are of the Blood of the Father, and the very remotest of these shall ex­clude the Sons Mothers Brother; and it is likewise true, that the great Grand-mothers Blood hath passed through more Males of the Fathers Blood, than the Blood of the Grand-mo­ther, or Mother of the Father, but in this case the Fathers Mothers Sister shall be preferred before the Fathers Grand-mothers Brother, or great Grand-mothers [Page 98]Brother, because they are all in the Female Line, viz. Cognati, and the Fathers Mothers Sister is the nearest, and therefore shall have the preference, as well as in the Male Line ascending the Fathers Bro­ther or Sister, shall be pre­ferred before the Grand-Fathers Brother.

5th Rule, And yet in the last case, where the Son purchaseth Lands and dies without Issue, and without Heir of the part of his Grand-father, the Land should bescend to his Grand-mothers Brother or Sister, [Page 99]as Heir of the part of the Father; yet, if the Father had purchased this Land and died, and it descended to his Son who died with­out Issue, the Lands should not have descended to his Fathers Mothers Brother or Sister, for the Reason given in the eighth Rule, but for want of Brothers or Sisters of the Grand-father, great Grand-father, and so upward in the Male ascending Line, it should de­scend to the Fathers Grand-mothers Brother or Sister, which is Heir of the part of the Father, who should be preferred before the [Page 100]Fathers Mothers Brother, which was in truth the Heir of the part of the Mother of the purchaser, though the next Heir of the part of the Father of him that last died seized. And therefore, as if the Father who was the 02 purchaser had died without Issue, the Heirs of the part of his Father, whether of the Male or Female Line, should have been preferred before the Heir of the part of the Mother; so the Son that stands now in the place of his Father, and in­herits to him primarily in his Fathers Line dying with­out Issue, the same Devo­lution [Page 101]and Hereditary Suc­cession, should have been as if his Father had imme­diately died without Issue, which should have been to his Grandmothers Bro­ther as Heir of the part of the Father, though by the Female Line, and not to his Mothers Brother, which was only Heir of the part of his Mother, and not to take till his Fathers Fine, as well Female as Male was spent.

6th Rule, If the Son pur­chase Lands and dies with­out Issue, and it descends to any Heir of the part of [Page 102]the Father, and then the Line of the Father (after Entry and Possession) fail, it shall never resort to the Line of the Mother, tho' in the first Instance, or first Descent from the Son, it might have descended to the Heir of the part of the Mother: For now by this Descent and Seisin, it is lodged in the Fathers Line, to whom the Heir of the part of the Mother can never derive a Title as Heir, but it shall rather Escheat. But if the Heir of the part of the Father had not entered, but then that Line had failed, it [Page 103]might have descended to the Heir of the part of the Mother, as Heir to the Son, to whom immediate­ly for want of Heirs of the part of the Father it might have descended.

7th Rule, And upon the same Reason, if it had once descended to the Heir of the part of the Father of the Grand-fathers Line, and that Heir had entered, it should never descend to the Heir of the part of the Fa­ther of the Grand-mothers Line, because the Line of the Grand-mother was not of Blood or Consanguinity to the Line of the Grandfa­thers side.

8th Rule, If for default of Heirs of the purchaser of the part of the Father, the Lands Descend to the Line of the Mother, the Heirs of the Mother on the part of her Fathers Side, shall be preferred in Succession be­fore her Heirs of the part of her Mothers side, because they are the more worthy. A great part of these diffe­rences are easily to be colle­cted out of the Resolutions in the case of Clare versus Brooke, alias Cobham. And thus the Law stands in point of Descents, or Hereditary Succession in England at this Day, and for above Four hundred years past.