the Jews, Greeks, and Romans: none of whofe laws looked any farther than the perfon himfelf who died feifed of the eftate; but affigned him an heir, without confidering by what title he gained it, or from what ancestor he dérived it. But the law of Normandy agrees with our law in this refpc&t: nor indeed is that agreement to be wondered at, fince the law of defcents in both is of feodal original; and this rule or canon cannot otherwife be accounted for than by recurring to feodal principles.

WHEN feuds firft began to be hereditary, it was made a neceflary qualification of the heir, who would fucceed to a feud, that he fhould be of the blood of, that is lineally descended from, the first feudatory or purchafor. In confe- [ 221 ] quence whereof, if a vafal died feifed of a feud of his own acquiring, or feudum novum, it could not defcend to any but his own offspring; no, not even to his brother, because he was not defcended, nor derived his blood, from the first acquirer. But if it was feudum antiquum, that is, one defcended to the vafal from his ancestors, then his brother, or fuch other collateral relation as was defcended and derived his blood from the first feudatory, might fucceed to such inheritance. To this purpose speaks the following rule; "frater fratri, fine legitimo haerede defuncto, in beneficio quod eorum "patris fuit fuccedat : fin autem unus e fratribus a domino feu"dum acceperit, eo defuncto fine legitimo haerede, frater ejus in

66

feudum non fuccedit "." The true feodal reason for which rule was this; that what was given to a man, for his perfonal fervice and perfonal merit, ought not to defcend to any but the heirs of his perfon. And therefore, as in eftates-tail, (which a proper feud very much refembled) fo in the feodal donation," nomen haeredis, in prima inveftitura expressum, "tantum ad defcendentes ex corpore primi vafalli extenditur ; et « non ad collaterales, nifi ex corpore primi vafalli five ftipitis "defcendant" the will of the donor, or original lord, (when feuds were turned from life eftates into inheritances) not being to make them abfolutely hereditary, like the Ro

1 Gr. Couflow. c. 259

m 1 Feud. 1.

n Crag, l. 1. 1. 9. § 36.

man

man allodium, but hereditary only fub modo; not hereditary to the collateral relations, or lineal ancestors, or husband, or wife of the feudatory, but to the iffue defcended from his body only.

HOWEVER, in procefs of time, when the feodal rigour was in part abated, a methed was invented to let in the collateral relations of the grantee to the inheritance, by granting him a feudum novum to hold ut feudum antiquum; that is, with all the qualities annexed cf a feud derived from his anceltors; and then the collateral relations were admitted to fucceed even in infinitum, because they might have been of the blood [222] of, that is defcended from, the first imaginary purchafor. For fince it is not afcertained in fuch gencral grants, whether this feud fhall be held ut feudum paternum or feudum avitum, but ut feudum antiquum merely; as a feud of indefinite antiquity; that is, fince it is not afcertained from which of the ancestors of the grantee this feud fhall be fuppofed to have defcended; the law will not afcertain it, but will fuppofe any of his ancestors, pro re nata, to have been the first purchafor: and therefore it admits any of his collateral kindred (who have the other neceffary requifites) to the inheritance, because every collateral kinfinan must be defcended from fome one of his lineal ancestors.

1

Of this nature are all the grants of fee-fimple eftates of this kingdom; for there is now in the law of England no fuch thing as a grant of a feudum novum, to be held ut novum ; unless in the cafe of a fee-tail, and there we fee that this rule is ftrictly obferved, and none but the lineal defcendants of the first donce (or purchafor) are admitted; but every grant of lands in fee-fimple is with us a feudum novum to be held ut antiquum, as a feud whofe antiquity is indefinite: and therefore the collateral kindred of the grantee, or defcendants from any of his lineal ancestors, by whom the lands might have poffibly been purchased, are capable of being called to the inheritance.

YET, when an eftate hath really defcended in a course of inheritance to the perfon laft feifed, the ftrict rule of the

feodal law is ftill obferved; and none are admitted, but the heirs of thofe through whom the inheritance hath paffed: for all others have demonftrably none of the blood of the first purchafor in them, and therefore fhall never fucceed. As, if lands come to John Stiles by defcent from his mother Lucy Baker, no relation of his father (as fuch) fhall ever be his heir of these lands; and, vice versa, if they defcended from his father Geoffrey Stiles, no relation of his mother (as fuch) fhall ever be admitted thereto; for his father's kindred have none of his mother's blood, nor have his mother's relations any fhare of his father's blood. And fo, if the estate descended from his father's father, George Stiles; the relations of his father's mother, Cecilia Kempe, fhall for the fame reafon [223 1 never be admitted, but only thofe of his father's father (10). This is also the rule of the French law °, which is derived from the fame feodal fountain.

HERE we may observe, that so far as the feud is really antiquum, the law traces it back, and will not fuffer any to inherit but the blood of those ancestors, from whom the feud was conveyed to the late proprietor. But when, through length of time, it can trace it no farther; as if it be not known whether his grandfather, George Stiles, inherited it from his father Walter Stiles, or his mother Chriftian Smith, or if it appear that his grandfather was the first grantee, and fo took it (by the general law) as a feud of indefinite antiquity; in either of these cafes the law admits the defcendants of any ancestor of George Stiles, either paternal or mater

• Domat. part 2. pr.

(10) Hence the expreffion beir at law, must always be ufed with a reference to a specific eftate; for if an only child has taken by defcent an estate from his father, and another from his mother, upon his death without iffue, these eftates will defcend to two dif ferent perfons: fo alfo if his two grand fathers and two grandmothers had each an eftate, which defcended to his father or mother, whom I fuppofe alfo to be only children, then, as before, thefe four eftates will defcend to four different heirs.

VOL. II.

S

nal,

nal, to be in their due order the heirs to John Stiles of this eftate because in the first cafe it is really uncertain, and in the fecond cafe it is fuppofed to be uncertain, whether the grandfather derived his title from the part of his father or his mother.

THIS then is the great and general principle, upon which the law of collateral inheritances depends; that, upon failure of iffue in the last proprietor, the estate shall descend to the blood of the first purchasor; or, that it shall refult back to the heirs of the body of that ancestor, from whom it either really has, or is supposed by fiction of law to have originally defcended: according to the rule laid down in the year books P, Fitzherbert, Brook', and Hale', "that he who "would have been heir to the father of the deceafed" (and, of course, to the mother, or any other real or fuppofed purchafing ancestor) "shall also be heir to the fon;" a maxim, that will hold univerfally, except in the cafe of a brother or fifter of the half blood, which exception (as we shall see hereafter) depends upon very special grounds.

THE rules of inheritance that remain are only rules of evidence, calculated to inveftigate who the purchasing ancestor [224] was; which in feudis vere antiquis has in procefs of time been forgotten, and is fuppofed fo to be in feuds that are held ut antiquis.

VI. A SIXTH rule or canon therefore is, that the collateral heir of the perfon last seised must be his next collateral kinfman, of the whole blood.

FIRST, he must be his next collateral kinfman, either perfonally or jure reprefentationis (11); which proximity is rec

(11) This is only true in the paternal line; for when the paternal and maternal lines are both admitted to the inheritance, the most remote collateral kinfwan ex parte paternâ, will inherit before the nearest ex parte materna. See p. 236. poft.

koned

koned according to the canonical degrees of confanguinity before-mentioned. Therefore, the brother being in the first degree, he and his defcendants fhall exclude the uncle and his iffue, who is only in the fecond. And herein confists the true reafon of the different methods of computing the degrees of confanguinity, in the civil law on the one hand, and in the canon and common laws on the other. The civil law regards confanguinity principally with refpect to fucceffions, and therein very naturally confiders only the perfon deceased, to whom the relation is claimed: it therefore counts the degrees of kindred according to the number of persons through whom the claim must be derived from him; and makes not only his great nephew but also his firft-coufin to be both related to him in the fourth degree; because there are three perfons between him and each of them. The canon law regards confanguinity principally with a view to prevent inceftuous marriages, between those who have a large portion of the fame blood running in their refpective veins; and therefore looks up to the author of that blood, or the common anceftor, reckoning the degrees from him; fo that the great nephew is related in the third canonical degree to the perfon propofed, and the first-coufin in the fecond; the former being diftant three degrees from the common ancestor, (the father of the propofitus) and therefore deriving only one fourth of his blood from the fame fountain; the latter, and alfo the propofitus himself, being each of them diftant only two degrees from the common ancestor, (the grandfather of each) and therefore having one half of each of their bloods the fame. The common law regards confanguinity principally with respect to defcents; and, having therein the fame object in view as the civil, it may seem as if it ought to proceed according to the civil computation. But as it alfo refpects the purchafing an [225] ceftor, from whom the estate was derived, it therein resembles the canon law, and therefore counts it's degrees in the fame manner. Indeed the defignation of perfon, in feeking for the next of kin, will come to exactly the fame end (though the degrees will be differently numbered) whichever method of computation we fuppofe the law of England to ufe; fince the